Kibara

a. An allotment letter cannot be used to confer ownership of title in the context of adverse possession; b. The suit is not ripe for hearing as it was led before the lapse of twelve (12) years from the date of registration of the Defendant’s title as stipulated under Section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya; and c. The Originating Summons as drawn is incurably defective and should be dismissed with costs. Directions 3. The court directed that the Preliminary Objection be canvassed by way of written submissions. I have had the opportunity to read the parties’ submissions, which have been duly considered in the writing of this ruling. 4. It is pertinent to note that in dealing with a preliminary objection, a replying adavit is not the appropriate mode of response, as it tends to introduce factual disputes that are more suitably addressed at trial. Written submissions are therefore sucient. Analysis and Determination 5. Having carefully considered the preliminary objection as well as the submissions before me, this court nds that the issues that arise for determination are; whether the Defendant has satised the threshold for a preliminary objection, and whether the Plainti’s claim for adverse possession is statute-barred. 6. The threshold for a preliminary objection was well articulated in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the court stated: “ So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion.” 7. It is therefore incumbent upon this Court to rst establish whether the issues raised in the instant preliminary objection fall within the permissible scope of a preliminary objection and whether they can dispose of the entire suit without recourse to further evidence. 8. The Defendant/Objector has anchored her objection on two broad points of law, namely: a. That an allotment letter cannot confer ownership capable of grounding a claim in adverse possession; b. That the suit is not ripe for determination. as the statutory limitation period of twelve (12) years under section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya, has not lapsed; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18237/eng@2025-11-27 2

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On the Issue of Allotment Letter and Ownership 9. The Respondent/Objector argued that an allotment letter cannot confer ownership and therefore cannot form the basis of a claim in adverse possession. With respect, I take the view that while the character of ownership documents may ultimately fall for determination at trial, the Applicant’s case is not solely predicated upon an allotment letter. Indeed, the adavit in support of the Originating Summons annexes a title deed in the Defendant’s name. This limb of the objection therefore does not raise a pure point of law and cannot be sustained at this stage. On the Accrual of Time for Adverse Possession 10. The more substantial issue relates to whether the Plainti’s suit is premature for failure to satisfy the twelve-year statutory period under section 7 of the Limitation of Actions Act, which provides: “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it rst accrued to some person through whom he claims, to that person.” 11. The Defendant/Objector submitted that the Plainti’s time for adverse possession could only have begun to run on 30th September 2020, when the Defendant became the rst registered proprietor of the suit property. It was further submitted that the Plainti led her suit on 3rd March 2022, barely two years after the Defendant’s registration, and thus before the lapse of the twelve-year statutory period. 12. The Court of Appeal in Titus Kigoro Munyi v Peter Mburu Kimani [2015] eKLR restated the principle that: “ The limitation period for purposes of adverse possession only starts running after registration of the land in the name of the respondent.” 13. Similarly, in Francis Gitonga Macharia v Muiruri Waithaka, Civil Appeal No. 110 of 1997, the Court held that time for adverse possession does not run unless there is a registered owner of the land. 14. The Plainti/Respondent, as pointed out earlier on, asserts that the title for the suit property was issued way back in the 1970s; not in the year 2020 as alleged by the Defendant/Objector. The adavit in support of the Originating Summons annexes a title deed in the Defendant’s name, being I.R 3416, L.R No. 4480/157 registered way back on 14th February 1976, to support the averment. The same was also annexed to the adavit of Edward Wangila sworn on 26th September 2025. 15. The issue whether the title in the Defendant’s name was issued in 1976 or 2020 is a contested issue of fact. It is not an issue that can be determined by way of a preliminary objection. The preliminary objection by the Defendant premised on the basis of issuance of the title to the suit property in the year 2020 does not meet the criteria in the Mukisa Biscuits case. 16. Consequently, the preliminary objection by the Defendant is disallowed with costs to the Plainti. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 27TH DAY OF NOVEMBER 2025. M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18237/eng@2025-11-27 3

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In the virtual presence of: Mr. Wangila for the Plainti Ms. Muriungi for the Defendant/Objector Court Assistant: Mpoye https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18237/eng@2025-11-27 4

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