Kangethe (Suing as the Legal Representative of the Estate of Elias Kangethe Njoroge - Deceased) v Mwangi (Enviromental and Land Originating Summons E002 of 2026) [2026] KEELC 5679 (KLR) (23 September 2026) (Ruling) Neutral citation: [2026] KEELC 5679 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MURANGA ENVIROMENTAL AND LAND ORIGINATING SUMMONS E002 OF 2026 MN GICHERU, J SEPTEMBER 23, 2026 BETWEEN RUSARIA NJERI KANGETHE (SUING AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF ELIAS KANGETHE NJOROGE - DECEASED) ..... APPLICANT AND GIBSON KINUTHIA MWANGI ........................................................ RESPONDENT RULING 1. This ruling is on the notice of preliminary objection dated 28-4-2026. It reads as follows. a. That the Respondent lacks the legal capacity to be sued in this matter as he is neither the registered owner of the suit property nor the legal representative of the registered owner. b. That the suit property is registered in the name of a deceased person and no legal representative of the estate has been joined to the proceeding. c. That the suit oends the mandatory provisions of the law of Succession Act and is therefore null and void ab’initio. d. That the claim raises no reasonable cause of action against the Respondent. e. That the suit is fatally defective, frivolous, vexatious and an abuse of the Court. The Respondent therefore prays that the Applicant’s suit be dismissed with costs to the Respondent. 2. The Applicant’s claim against the Respondent is based on adverse possession. The facts are that in the year 1968, the Applicant’s husband Elias Kangethe Njoroge purchased the suit land Loc.7/ Ichagaki/329 from Samuel Mwangi Machugu. The land measures 0.44 Ha and the purchase price was Kshs 800/= which Elias Kangethe paid in full. The buyer took immediate possession of the land https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5679/eng@2026-09-23 1
page 1 of 3
which has been developed extensively with a permanent house. Five members of the Applicant’s family including Elias Kangethe are buried on the land. The Respondent’s father’s land parcel Nos. Loc. 7/ Ichagaki/11 and 317 border the suit land. The Respondent led Succession Cause No. 62 of 1990 in which he claimed that his father Samuel Mwangi Munyua and the seller of the suit land Samuel Mwangi Machugu are one and the same person. The Court did not allow the Respondent’s prayer. 3. In addition to the notice of preliminary objection, the Respondent led an adavit dated 28-4-2026 in which he states as follows. One, the suit land is currently registered in the name of Samuel Mwangi Machugu. Two, the Respondent is neither Samuel Mwangi Machugu nor is he the legal representative of the estate of the deceased. 4. I have carefully considered the preliminary objection against the pleadings on record. I have also considered the written submissions by learned counsel for the parties as well as the issues raised therein. I nd that one issue arises because it is admitted by the Applicant. a. 5. Whether the Respondent who is not the registered owner of the suit land or a member of the family of the deceased owner can be joined in the current suit. It is my nding that the notice of preliminary objection has merit but because of only one issue, that is to say, the Applicant’s admission that the Respondent is not a son of the registered owner of the suit land. If the Respondent is a son of Samuel Mwangi Munyua and not the son of Samuel Mwangi Machugu, the deceased registered owner of the suit land, it is dicult to see why he is a party in this suit. Since the Applicants claim is based on adverse possession having occupied the suit land in 1971, and in occupation, what cause of action does the Applicant have against a person who is neither registered as the owner nor in occupation? This needed to be explained by further evidence which is lacking. The suit as framed, without more, cannot succeed against the Respondent whose nexus with the land is totally lacking. Since he is merely a neighbour who is not even alleged to have to have trespassed on the land, the cause of action against him is dicult to understand because even the green card at page 8 of the Plaintis’ trial bundle shows that Samuel Mwangi Machugu is the registered owner of the suit land since 3-2-1966. It is only the registered owner or his legal representative who can be sued. Suing a neighbor is not proper. 6. The Respondent has raised other issues like the oral sale agreement not meeting the threshold in Section 3 of the Law of Contract Act which requires that such an agreement be in writing. This point would not hold water because a person put in possession by the registered owner would enjoy a constructive trust. The proviso to Section 3(3) of the Law of Contract Act states“ Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap 526), nor shall anything in it aect the creation of a resulting, implied or constructive trust”. 7. In conclusion and for the reasons already given in paragraph 5 of this ruling, I nd merit in the notice of preliminary objection dated 28-4-2026. I dismiss the Plainti’s suit with costs to the Respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 23RD DAY OF SEPTEMBER, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Antony https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5679/eng@2026-09-23 2
page 2 of 3
Applicant’s Counsel – Absent Respondent’s Counsel –Miss Kariuki https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5679/eng@2026-09-23 3
page 3 of 3