Mwaruwa & 11 others v Jembe & another

Mwaruwa & 11 others v Jembe & another (Environment & Land Case 43 of 2023) [2024] KEELC 13531 (KLR) (2 December 2024) (Ruling) Neutral citation: [2024] KEELC 13531 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIRONMENT & LAND CASE 43 OF 2023 FM NJOROGE, J DECEMBER 2, 2024 BETWEEN RAPHAEL KENGA MWARUWA & 11 OTHERS & 11 OTHERS & 11 OTHERS ....................................................................................................... PLAINTIFF AND DR TSUMA JEMBE .......................................................................... 1ST DEFENDANT LAND REGISTRAR KILIFI ........................................................... 2ND DEFENDANT RULING 1. The preliminary objection herein dated 15/1/2024 has been led by the 1st defendant. It is based on the following: That the 1st defendant lacks capacity to be sued in respect of the estate of the deceased; The determination of land appeal 26 of 1976 estops the plaintis from instituting proceedings; That the process of addressing or instituting proceedings for adverse possession is by way of originating summons under Order 37 CPR and not by plaint; That the court lacks jurisdiction to entertain this matter. 2. On 3/6/2024 this court ordered that the preliminary objection shall be disposed of by way of written submissions. none were led by any party. Notably the objectors and his counsel were absent on 19/9/2024 when the matter came up for issuance of a ruling date. As no other method save written submissions had been prescribed by court for the disposal of the objection, the omission to le any submissions by the objector shows disinterest and is a failure to prosecute, and for that reason I strike out the notice of preliminary objection dated 15/1/2024 with costs to the plaintis and the 2nd defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13531/eng@2024-12-02 1

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