Yeri & 15 others v Thethe (Suing as the Legal Representative of the Estate of the Late Kaburuku Ndundi Thethe)

RULING 1. The suit herein pertains to the Applicants’ claim of adverse possession over Land Provisional Certicate No. CR. 5485/1 Mambrui (Hereinafter referred to as the suit property) currently registered in the Respondent’s name as the administrator of the above-cited deceased’s estate. 2. Regarding representation, the 1-3, 5-14 and 16th Plaintis are represented by the rm of Michira Messah & Company Advocates. The 4th and 15th Plaintis are represented by the rm of Rukenya A. Murigu & Co. Advocates. The Respondent is represented by Counsel Suleiman Macharia Kimani. 3. The rst application dated 7th April 2026 was led by the Defendant/Respondent seeking the following orders: 1. Spent 2. The plaintis, by themselves, through their family members, or agents, employees, servants or proxies, or otherwise howsoever, are barred by an injunction from entering upon, trespassing or working the suit land, or building or constructing houses or structures of any kind, whatsoever and howsoever, or disrupting the defendant's or Kaburuku Ndundi Thethe's family members activities on the suit land, or otherwise dealing with the suit land by way of sale, disposal, Charge, or in any other way or manner whatsoever, dealing with the suit land in any manner that may diminish or adversely aect the registered and possessory interests of the estate of the late Kaburuku Ndundi Thethe, as decreed in Malindi ELC No. 174 of 2012, pending inter partes hearing of this application and ultimately the hearing and determination of the plainti's suit. 4. The grounds of the application are that the suit property was subject to litigation in Malindi ELC No. 174 of 2012 and Malindi ELC No. 294 of 2013. The Applicants posit that, in the said litigation, this court awarded the suit land to the Defendant as the legally appointed administrator of the estate of the late Kaburuku Ndundi Thethe, because the deceased had purchased the suit property in 1975. 5. The Defendant also argues that the Plaintis have no lawful claim to the suit property because ownership was conclusively determined in earlier litigation in favour of the estate of the late Kabaruku Ndundi Thethe, rendering the present suit incompetent. The Defendant contends that the Plaintis, who are neither beneciaries of the estate nor persons with any proprietary interest in the land, unlawfully entered the suit property and commenced construction with the intention of frustrating the implementation of the earlier judgments and creating a basis for an otherwise untenable claim. 6. The Defendant further asserts that the Plaintis' continued occupation and developments amount to trespass and waste, warranting the demolition of the impugned structures and police enforcement. 7. Finally, it is contended by way of a preliminary and jurisdictional point of law that the judgment in Malindi ELC No. 174 of 2012 (consolidated with ELC No. 294 of 2013) constitutes a judgment in rem that conclusively settled ownership of the suit property. He argues that the said judgement not only binds the suit land but also all persons who were parties to the suit, those who claim to be or to have been interested in the suit property; that the issue of ownership of the suit property was conclusively determined and cannot be reopened or re-litigated on grounds that the Plaintis did not participate in the two previously determined suits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6123/eng@2026-10-01 2

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8. He argues therefore, that the present suit is barred under Section 44 of the Evidence Act and ought to be struck out with costs on the higher scale. 9. The 1st Applicant/Respondent Mr. Morris Katana Yeri led a Replying Adavit dated 27th April 2026 in response to the above application. He contended that the Applicants live on a distinct portion of land CR. No. 5485/1. He maintained that the Defendant’s family and theirs have been living on the property since time immemorial and annexed photographs of alleged graves where they have interred their deceased family members. He argues that the Defendant’s application is meant to defeat their claim. 10. The 4th Plainti/Applicant led an adavit and a certicate of translation dated 23rd April 2026. She alleged never having instructed the 1st Plainti to le the suit on her behalf. Further, that she never instructed an advocate to sue on her behalf. Crucially, she maintained having no claim whatsoever to the suit property. She also posited that the 2nd, 3rd, 6th ,10th, 13th, 15th and 16th Plaintis do not reside on the suit property but in their own parcels of land not within the suit property. 11. The 4th Plainti also termed the application as a sham intended to frustrate the distribution of the deceased’s estate. She denounced the said authority purportedly led by the 1st Plainti and sought to be discharged from the suit. 12. The 15th Plainti equally led an Adavit sworn on 11th May 2026 citing similar grounds and siding with the 4th Plainti. He also sought for the dismissal of the suit. 13. This Court issued directions on the said application by xing it for an inter parties hearing on 16th April 2026, and upon hearing the parties, granted prayer 2 of the said application pending the hearing of the highlighting of submissions on 28th May 2026. The matter came up on the said date in the presence of Counsel for the 4th and 15th Plaintis and in the absence of Counsel for the 1st -3rd, 5th -14th, and 16th Plaintis. This Court xed the application dated 7th April 2026 for ruling on 25th June 2026. 14. The second Application for determination is dated 5th June 2026 led by the rm of Michirah & Co. Advocates on record for the 1st -3rd, 5th -14th, and 16th Plaintis. The Application sought to arrest the ruling which was slated for 25th June 2026 (Spent) and sought leave to le a response and submissions with regard to the Notice of Preliminary Objection. Counsel posited that he is yet to le a response on behalf of his clients in opposition to the Preliminary Objection led by the Defendant. He maintains that he was unable to address the court on 28th May 2026 when the application came up for highlighting of submissions. 15. In reply, the Defendant led Grounds of Opposition dated 6th June 2026 and an Adavit sworn on 9th June 2026. He maintains that the Plainti’s counsel has not presented any transcript or recording to show that he was unable to log into court. Further, the Plaintis had ample time to le a rejoinder to the said application and preliminary objection but failed to do so. 16. The Defendant also maintained that the 1st Plainti does not have any authority to move the court on behalf of the other Plaintis. Further that his counsel neither called him nor contacted the court assistant immediately before the alleged internet disconnection. 17. I have perused the submissions by the Plaintis and the Respondent dated 11th June 2026 and 15th June 2026 respectively. 18. This court notes that the Application and the Preliminary Objection (contained in the application) in contest was served upon the Plainti’s counsel on 15th April 2026 as shown in the Adavit of Service sworn by Josephine W. Kimani on the said date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6123/eng@2026-10-01 3

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19. I have perused the email extract annexed to the adavit and note that the email did not deliver to the email address used by the Defendant when eecting service, as seen in the mail delivery subsystem conrming that the address could not be found, or was unable to receive the mail. 20. Nonetheless, the Applicant led an application dated 29th April 2026 seeking to vary and discharge the orders issued on 16th April 2026 to allow the Applicants to continue cultivating on the suit property and graze their animals thereon. Further that the OCS Gongoni Police Station ensures compliance with the said orders, if granted. 21. It is uncontested that the 1-3, 5-14 and 16th Plaintis have neither led a rejoinder or submissions to the Application dated 7th April 2026 which equally contains the Notice of Preliminary Objection at Paragraph 4 of the said application wherein the Defendant/Applicant states that: “ 4. 22. That the Defendant is allowed (by and through this application) to prove, as a jurisdictional and preliminary point, the judgement of this court in Malindi ELC No. 174 of 2012 (heard with ELC No. 204 of 2013), as a judgement in rem; and thereupon the court is pleased to strike-out or dismiss the Plaintis' suit with costs (on higher scale) for oending section 44 of the Evidence Act, and the rem doctrine. a) The judgement of court in Malindi ELC No. 74/2012 (as heard and determined with Malindi ELC No. 204 of 2013) was made in rem. b) It determined the status of Plot 78 Mambrui, as the property of the late Kabaruku Ndundi Thethe by purchase, and binds and aects not only the suit land, but all persons who were parties to the suit, and those who may claim to be, or to have been interested in the suit land. c The judgement in rem is binding and conclusive not only against the parties to the said two suits, but also the whole world (see Dina Management Ltd., V. County Government of Mombasa and 5 Others (2023) (SCK); Wachira v. Sapit & 2 Others [2025) KEHC 2012 (KLR), Ruling of 13.02.2025, per Hon. Magare Kizito J; Japheth Nzila Muangi v Kenya Safari Lodge and Hotels [2008] eKLR and Abukar G. Mohamed v. Independent Electoral and Boundaries Commission [2017) eKLR). d) The issue of ownership of the suit land is conclusively determined and cannot be reopened or re-litigated on the spurious grounds that the Plaintis, for whatever reasons, did not participate in the two previously determined suits.” This Court is alive to the nature and import of preliminary objections, which, where meritorious, have the potential to conclusively dispose of a suit such as the Originating Summons herein founded on a claim for adverse possession. I have carefully perused the application, the supporting Adavit, and the grounds advanced in support thereof. The sole explanation proered by counsel is that an internet connectivity failure on 28th May 2026 prevented him from joining the virtual court session to address the Court on the circumstances giving rise to his predicament. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6123/eng@2026-10-01 4

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23. It is common ground that no pleadings have been led in opposition to either the application or the Preliminary Objection. The pivotal issue for determination, however, is whether the Defendant/ Applicant stands to suer any prejudice should this Court allow the application dated 5th June 2026. I note that the Defendant/Respondent has already led submissions dated 11th June 2026 in opposition to the application dated 5th June 2026. Equally, the Defendant has led submissions dated 30th April 2026 in support of his application dated 7th April 2026. Accordingly, the parties' respective positions have been comprehensively placed before the Court for consideration. 24. In the circumstances, granting the Plaintis the leave sought would occasion substantial prejudice to the Defendant, who has demonstrably exercised diligence in prosecuting his application. Conversely, the conduct of the Plaintis, save for the 4th and 15th Plaintis who expressly renounced any interest in the suit property, reects a marked lack of diligence. The disclaimer by the 4th and 15th plaintis further underscores the absence of a uniform or sustained interest among the Plaintis in the subject matter of these proceedings. However, noting the sensitive nature of a preliminary objection as seen in George W M Omondi & another v National Bank of Kenya Ltd & 2 others [2001] KEHC 841 (KLR) where the court observed as follows; “ Bearing that denition in mind, I agree with counsels for the defendants that both the objection as to the legal competence of the plaintis to sue and the plea of res judicata are pure points of law which if determined in their favour, would conclude the litigation and they are accordingly well taken as preliminary objections.” 25. Equally, bearing in mind that the right to a fair hearing is a fundamental constitutional guarantee that cannot be limited, this Court is swayed to consider the appropriate measures necessary to ameliorate any prejudice that the Defendant/Applicant may suer as a consequence of the delay in the determination of his application. 26. It is not lost on this Court that any prejudice likely to be occasioned to the Defendant/Applicant is capable of being adequately remedied through an award of throw-away costs and the grant of corresponding leave to le supplementary submissions and, where necessary, a further reply. Moreover, the present suit, having been instituted in February 2026, is still at a relatively nascent stage. This Court is equally guided by the constitutional imperative that justice shall be administered without undue regard to procedural technicalities. It is therefore incumbent upon the Court to strike an equitable balance between the conduct of the respective parties so as to ensure that no party suers undue prejudice and, where prejudice is occasioned, that it is appropriately mitigated by the party responsible. 27. In view of the foregoing considerations, the determination of the application dated 7th April 2026 shall stand deferred to aord the 1st –3rd, 5th –14th, and 16th Plaintis an opportunity to le their submissions in response thereto. In exercise of this court’s discretion and in the interests of justice and fair hearing, I hereby make the following orders: i. The 1st, 2nd, 3rd, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th and 16th Plaintis/Respondents are hereby granted 7 days' leave to le any rejoinder and submissions to the Defendant’s Application and Notice of Preliminary Objection dated 7th April 2026; ii. That the said leave granted in (i) above shall only take eect once the said Plaintis pay the Defendant throwaway costs of Kshs. 30,000 within 7 days of this ruling and in default of such payment the orders herein shall lapse; iii. The Defendant/Applicant is granted corresponding leave of 7 days from date of service to le any supplementary rejoinder or submissions, if any; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6123/eng@2026-10-01 5

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iv. Evidence of compliance with order(i) and (ii) above shall be led in the CTS within 14 days from the date hereof and no further mention is necessary; v. In default of the plainti’s compliance with order(i) and (ii) above, the court shall proceed to deliver its ruling in the absence of the said Parties’ rejoinder and/or submissions. vi. Ruling on the Application dated 7th April 2026 and the Preliminary Objection contained therein is deferred to 18th November 2026. DATED, SIGNED, AND DELIVERED AT MALINDI ON THIS 1ST DAY OF OCTOBER 2026 HON JUSTICE MWANGI NJOROGE JUDGE ENVIRONMENT AND LAND COURT, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6123/eng@2026-10-01 6

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