I. Introduction
1. What is placed before this Honourable Court for its determination is the Notice of Motion application dated 11 th February, 2026 filed by the 2 nd and 3 rd Defendants/Applicants herein, IBRAHIM NJOROGE KIMANI and BETINA WALTHER (Hereinafter rereferred to as “The Applicants”) respectively. The application is expressed to be brought under the provisions of Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A and 3A of the Civil Procedure Act, Cap. 21.
2. Upon service, while opposing the application, the Plaintiff/Respondent (Hereinafter rereferred to as “The Respondents”) filed a rely through his Replying Affidavit dated 1 st April, 2026.
II. The case by the 2 nd & 3 rd Defendants/Applicants
3. The 2 nd & 3 rd Defendants/Applicants seek the following orders: -
a) Spent.
b) THAT this Honourable Court be pleased to grant leave for the 2 nd and 3 rd Defendants to enter appearance.
c) THAT the Honourable Court do strike out this suit as against the 2 nd and 3 rd Defendants as there is no reasonable cause of action against them and the suit is an abuse of the process of the Court.
d) THAT the costs of this application be borne by the Plaintiff.
4. The application is premised on the grounds set out on its face, testimonial facts and averments supported by the annexed affidavit of the 2 nd Defendant/Applicant, MR. IBRAHIM NJOROGE KIMANI, sworn on 11 th February, 2026, both on his own behalf and on behalf of the 3 rd Defendant/Applicant, together with the annextures thereto marked as “IK-1” to “IK-7” respectively. He averred as follows that:-
a) He was an adult male of sound mind conversant with the facts surrounding this matter and the 2 nd Defendant herein.
b) He was solely registered as the proprietor of land parcel No. Kwale/Diani Complex/393 measuring approximately 0.40 Ha, and jointly registered with the 3 rd Defendant as the proprietors of land parcel No. Kwale/Diani Complex/395 measuring approximately 0.34 Ha, both parcels being adjacent to each other and situate in the Diani Beach Mwakamba area within Kwale County.
c) He acquired the properties in the years 1993 and 1994 respectively, took possession thereof, erected a house and sunk a borehole thereon which he used for farming purposes.
d) Sometime in the year 2005, he left the country for the United Republic of Tanzania for work-related purposes, and would return from time to time to check on his properties. In support thereof. He annexed copies of his passport bio-data pages and sundry immigration endorsements marked as “IK - 1”.
e) Sometime on or about 7 th July, 2021, during one of his routine visits to Ukunda, he applied for green card searches on the two properties, which searches revealed that cautions had been entered against both titles on 15 th November, 2009 by virtue of a court order emanating from this matter under its previous citation, ELC O.S No. 120 of 2007. He annexed copies of the said green card searches marked as “IK-2” and “IK-3”.
f) He thereupon instructed his Advocates on record to peruse the court file, which perusal revealed that a request for Judgment had been made on 21 st October, 2009 and allowed, and default judgment entered against the Applicants.
g) Further, that a Ruling had been delivered on 16 th July, 2020 dismissing the suit against them.
h) The suit having been dismissed, he applied for and was issued with a Decree certifying the same, which he lodged at the Kwale Land Registry and used to procure the removal of the said cautions from the two titles. He annexed a copy of the Order issued on 1 st December, 2021 marked as “IK-4”.
i) He thereafter continued to utilize the properties and later proceeded to sell the same sometime in the year 2023, with the transfers being effected in the year 2024, and annexed copies of the resultant green card entries marked as “IK-5” and “IK-6”.
j) He only got wind of this suit in December, 2025 from the 5 th Defendant, who informed him that a Judgment of the Court of Appeal had been rendered reinstating the suit.
k) At all material times, the Applicants had no knowledge that there was ever a suit against them,
l) They were never served with any documents relating to this suit, whether under its current citation, its former citation No. 120 of 2007, or in respect of Civil Appeal No. E110 of 2021; and that they never participated in the said appeal. He annexed a copy of the Judgment of the Court of Appeal marked as “IK-7”.
m) Immediately before and after the said sale, there was no court order prohibiting any transaction on the properties.
n) Should this matter proceed, the Court would issue an order that would not affect them.
o) The Court may issue orders in vain or less, should it proceed without this Application determined, it may prejudice, embarrass or delay the fair trial of the suit.
p) There was no cause of action against them and as such this suit ought to be struck out against them.
q) They had approached the Court in good faith without wasting judicial time.
r) They prayed the Court to grant them the orders as sought.
III. The responses by the Plaintiff/Respondent
a) In opposing the application, the Respondent swore his Replying Affidavit on 1 st April, 2026. He deposed as follows that:-
b) He was the Plaintiff/Respondent herein and therefore competent to swear the affidavit; that he had read and understood the Notice of Motion application dated 11 th February, 2026 together with the Supporting Affidavit.
c) The application was misconceived, bad in law and an abuse of the process of this Honourable Court and ought to be dismissed with costs.
d) The Plaintiff/Respondent deposed that the Applicants sought to have the suit struck out on the ground that the suit properties have allegedly been sold to third parties, a ground which he vehemently denied as capable of defeating or extinguishing an accrued claim for adverse possession.
e) It was a well-established principle of law that rights acquired under land adverse possession was overriding interests which run with the land, irrespective of any change in ownership.
f) Once time begins to run for purposes of adverse possession, it does not stop merely because the registered owner transfers or disposes of the suit property to a third party.
g) The alleged purchasers, if any, merely stepped into the shoes of the previous registered proprietors and took the land subject to the overriding interests, including his accrued rights of adverse possession.
h) In the circumstances, the proper legal course, if at all necessary, would be an amendment of the pleadings to enjoin or substitute the current registered proprietors as parties to the suit, rather than the drastic remedy of striking out.
i) Striking out the suit would be draconian, unjust and contrary to the principles of substantive justice, as it would defeat a claim that had already accrued by operation of law.
j) The Court of Appeal in Civil Appeal No. E110 of 2021, sitting at Mombasa and constituted by Hon. D.K. Musinga, P.J.A., Hon. Dr. K.I. Laibuta, J.A. and Hon. G.W. Ngenye-Macharia, J.A., ordered the reinstatement of this matter in favour of the Plaintiff/Respondent therein at paragraphs 38 to 40 of its Judgment, a copy whereof he annexed and marked as “HA-1”.
k) In conclusion, the Plaintiff/Respondent deposed that the Applicants’ application was a deliberate attempt to defeat justice and to sanitize an already accrued claim of adverse possession through the transfer of title. He urged this Honourable Court to find that the application lacked merit and to dismiss it with costs.
IV. Submissions
5. On 15 th April, 2026 while all the parties were present in Court, direction were granted to have the application be canvassed by way of written Submissions.
6. Pursuant to that parties complied and Court reserved 15 th July, 2026 as the date to render its Ruling accordingly.
A. The Written Submissions by the 2nd and 3rd Defendants/Applicants
7. On 3 rd July, 2026, the Law Firm of Messrs. Mwangi Kihira & Company Advocates filed written submissions on behalf of the 2 nd & 3 rd Defendants/Applicants. Mr. Kihira Advocate commenced by rehashing the facts of the application, submitting that the Plaintiff/Respondent had previously sued the Applicants in ELC O.S No. 120 of 2007 and that the suit was dismissed. That on the strength of the said order, the Applicants disposed of the suit properties; that the Applicants were never privy to Civil Appeal No. E110 of 2021 instituted by the Respondent challenging the dismissal of the suit; and that, without knowledge of the said proceedings, they legally transferred their interest in the land to third parties, whereby the Respondent has no cause of action subsisting against them.
8. The Learned Counsel averred that the Respondent had a duty to inform the Applicants of the said appeal and to serve them therewith, and that it is against the rules of natural justice for a litigant to fail to serve another party and thereafter hide under the cover of the doctrine of lis pendens.
9. On the law relating to the striking out of pleadings. The Learned Counsel invoked the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010 and placed reliance on the decision of the Court of Appeal in the case of:- “ Kivanga Estates Limited – Versus – National Bank of Kenya Limited [2017] KECA 591 (KLR)” , where the Learned Judges of Appeal opined as follows:-
“….It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction, capable of bringing a suit to an end before it has even been heard on merit, yet a party to civil litigation is not to be deprived lightly of his right to have his suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The flip side is that it is also unfair to drag a person to the seat of justice when the case brought against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations……”
10. In conclusion, Counsel submitted that the provision of Rule 79 of the Court of Appeal Rules, 2020 mandates the service of a Notice of Appeal upon all persons affected by an appeal; that the Respondent could not have expected the Applicants to have knowledge of the appeal when the same was never served upon them; and that equity favours the vigilant and not the indolent. The Learned Counsel accordingly prayed that the application be allowed as prayed.
B. The Written Submissions by the Plaintiff/Respondent
11. On his part, the Plaintiff/Respondent, through the Law Firm of Messrs. Mbwiza & Company Advocates, filed written submissions dated 15 th May, 2026. Mr. Mwanjama Advocate submitted that the application was misconceived, legally untenable, and intended to defeat an accrued claim of adverse possession through the transfer of title during the pendency of proceedings. Counsel framed the following issues for determination:
i. whether the transfer or sale of the suit property defeats a claim for adverse possession;
ii. whether accrued rights under adverse possession constitute overriding interests binding upon subsequent purchasers;
iii. whether the Applicants have established grounds to warrant the striking out of the suit; and
iv. whether the proper remedy is joinder and/or substitution of parties rather than striking out.
12. On the first issue, Learned Counsel argued that it was now settled law that once time begins to run for purposes of adverse possession, such time does not stop merely because the registered proprietor transfers the property to another person. Counsel invoked the provision of Section 7 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya, which bars the recovery of land after the expiration of twelve (12) years from the date the cause of action accrued, as read together with Sections 13 and 17 of the said Act, which extinguishes the title of the registered proprietor once the statutory period lapses. Reliance was placed on the decision of the Court of Appeal in the case of:- “ Githu – Versus – Ndeete [1984] KLR 776” , where the Court emphatically held that the transfer of land does not interrupt adverse possession, expressing itself thus:-
“The mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession.”
13. Similarly, the Learned Counsel relied on the case of:- Kasuve – Versus – Mwaani Investments Limited & 4 Others [2004] 1 KLR 184 , where the Court of Appeal held that adverse possession attaches to the land itself and binds successors in title. Counsel submitted that any alleged purchasers merely stepped into the shoes of the previous registered proprietors and took title subject to the accrued overriding interests, and that accordingly, the Applicants cannot sanitize an already accrued adverse possession claim through the transfer of title.
14. On the second issue, Counsel invoked the provision of Section 28(h) of the Land Registration Act, No. 3 of 2012, which recognizes as overriding interests the rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of actions, the legal effect being that such interests bind the land even where they are not noted in the register. The Learned Counsel further relied on the case of:- “ Mbira – Versus – Gachuhi [2002] 1 E.A. 137” , where the Court held that a person who proves continuous, open and uninterrupted occupation of land for the statutory period acquires enforceable rights over the land. Counsel submitted that the Respondent has pleaded and demonstrated occupation spanning several decades and therefore possesses rights protected by law, which the alleged transfers cannot extinguish.
15. On the third issue, Counsel submitted that the law regarding the striking out of pleadings is settled, and that Courts have consistently held that striking out is a draconian remedy which should only be exercised in the clearest of cases. Counsel placed reliance on the celebrated decision in the case of “ D.T. Dobie & Company (Kenya) Limited – Versus – Muchina [1982] KLR 1” , where the Court of Appeal held that no suit ought to be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action. The Learned Counsel submitted that the present suit raises substantive and triable issues relating to ownership by adverse possession, occupation, limitation, overriding interests and the legality of transfers effected during the subsistence of occupation, which issues can only properly be determined through a full hearing, and that the Applicants have therefore failed to meet the threshold for striking out.
16. On the fourth issue, the Counsel submitted that, assuming without admitting that the transfers occurred, the proper legal recourse would be the amendment of pleadings and the joinder or substitution of the current registered proprietors, and invoked the provision of Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 which grants this Honourable Court wide discretion to add parties whose presence is necessary for the effective and complete adjudication of the dispute. Counsel urged that the Court should lean towards sustaining suits and determining disputes on their merits rather than terminating proceedings on technicalities, in accord with the command of Article 159(2)(d) of the Constitution of Kenya, 2010, which obligates Courts to administer justice without undue regard to procedural technicalities.
17. Finally, the Learned Counsel asserted that the Court of Appeal in Civil Appeal No. E110 of 2021 reinstated this matter and expressly directed that the suit proceeds for hearing; that the Applicants’ present application is therefore an indirect attempt to defeat and circumvent the appellate Court’s decision; and that this Honourable Court should not permit litigants to undermine the authority and effect of a superior Court’s judgment through the transfer of title or procedural manoeuvres.
18. The Learned Counsel accordingly prayed that the Notice of Motion application dated 11 th February, 2026 be dismissed with costs and that the suit do proceed to full hearing on its merits.
V. Analysis and Determination
19. Having keenly perused and considered the Notice of Motion application, the Supporting Affidavit and its annextures, the Replying Affidavit and its annexture, the rival written submissions by the parties, the cited authorities and the relevant provisions of the Constitution of Kenya, 2010 and the applicable statutes.
20. For the Court to arrive at an informed, fair, just and reasonable decision, it has framed the following four (4) salient issues for its determination: -
a) Whether the 2 nd and 3 rd Defendants/Applicants should be granted leave to enter appearance in the suit and file their requisite documents;
b) Whether the suit as against the 2 nd and 3 rd Defendants/Applicants ought to be struck out for disclosing no reasonable cause of action and/or for being an abuse of the process of the Court;
c) Whether the alleged sale and transfer of the suit properties to third parties defeats and/or extinguishes the Plaintiff’s/Respondent’s claim of land adverse possession; and
d) Who should bear the costs of the application?
ISSUE No. a) Whether the 2 nd and 3 rd Defendants/Applicants should be granted leave to enter appearance in the suit;
21. Under this sub-heading, the Court proceeds from the fundamental premise that the right to a fair hearing is a constitutionally entrenched and non-derogable right. Article 50(1) of the Constitution of Kenya, 2010 provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Article 25(c) of the Constitution lists the right to a fair trial among the fundamental rights and freedoms that may not be limited. The audi alteram partem rule, that no man shall be condemned unheard, is a cornerstone of natural justice and of our adjudicative architecture.
22. The Applicants have deposed, and the same has not been controverted by any affidavit evidence to the contrary, that they only became aware of the existence of these proceedings in December, 2025 through the 5 th Defendant. While the record shows that a request for Judgment was made on 21 st October, 2009 and that default Judgment was entered against the Applicants on 7 th January, 2010 – which presupposes that the Court was then satisfied as to service of the Originating Summons upon them – the question of whether the Applicants were in fact and validly served remains contested, and is not one this Court needs to resolve conclusively at this interlocutory stage.
23. What the Court must underscore, however, is the true legal posture of the Applicants in these proceedings. There subsists on the record a default judgment entered against them on 7 th January, 2010, which judgment has never been set aside, varied or discharged. Indeed, the Court of Appeal, at paragraph 38 of its Judgment in Civil Appeal No. E110 of 2021, took express cognizance of this fact when it observed as follows:-
“Moreover, the deceased’s claim against the 2 nd and 3 rd Respondents with respect to parcel Nos. Kwale/Diani Complex/393 and 395 had already been determined before HCCC No. 115 of 2011 was instituted when the High Court entered Judgment in default against the 2 nd and 3 rd Respondents on 7 th January 2010 in ELC Case No. 120 of 2007 (OS).”
24. The mere entry of appearance at this juncture, without more, cannot and does not dislodge a subsisting Judgment. The procedural vehicle available to a defendant against whom a default Judgment has been entered is an application for the setting aside of that Judgment under Order 10 Rule 11 of the Civil Procedure Rules, 2010 which clothes the Court with a wide and unfettered discretion to set aside or vary a default judgment upon such terms as are just, particularly where the defendant demonstrates that he was never served or that he has a defence raising triable issues.
25. Be that as it may, this Court is enjoined by the provision of Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities. The Applicants cannot meaningfully ventilate any application – including one for the setting aside of the default judgment, should they be so advised – without first being permitted to formally come on record.
26. In the circumstances, and in furtherance of the Applicants’ inviolable right to be heard, the Court finds and holds that the prayer for leave to enter appearance is merited and hence it is hereby granted.
ISSUE No. b) Whether the suit as against the 2 nd and 3 rd Defendants/Applicants ought to be struck out for disclosing no reasonable cause of action and/or for being an abuse of the process of the Court.
27. Under this Sub heading, the Honourable Court will deliberate on the jurisprudence on the aspect of striking out pleadings and/or suits. The Applicants have invoked the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010, which stipulates as follows:-
“15.(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a) it discloses no reasonable cause of action or defence in law; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. ”
28. The principles governing the exercise of this jurisdiction are well beaten paths. The remedy of striking out is a draconian one, to be resorted to sparingly and only in the plainest and most obvious of cases. In the “ classicus locus” case of “ D.T. Dobie & Company (Kenya) Limited – Versus – Muchina (Supra)” Madan, J.A. (as he then was) famously held that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and that the Court should aim at sustaining rather than terminating a suit, for a cause of action, however weak, ought to be allowed to proceed to trial where it can be illuminated by evidence.
29. Similarly, in the case of:- “ Co-operative Merchant Bank Limited – Versus – George Fredrick Wekesa, Civil Appeal No. 54 of 1999” , the Court of Appeal summarized the principles thus: the power to strike out a pleading is discretionary; striking out is a draconian act which may only be resorted to in plain cases; whether or not a case is plain is a matter of fact; and a Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment. The same threshold was restated in the case of:- “ Yaya Towers Limited – Versus – Trade Bank Limited (In Liquidation), Civil Appeal No. 35 of 2000” and in the “Kivanga Estates Limited case (supra)” so heavily relied upon by the Applicants themselves, which enjoins the Court to balance the two rival considerations of not driving a litigant away from the seat of justice on the one hand, and not unfairly dragging a person to the seat of justice on a clearly hopeless claim on the other.
30. Guided by the above well set out legal principles, the Court now interrogates the twin limbs of the Applicants’ attack. These are namely: firstly, that there is no reasonable cause of action against them; and secondly, that the suit as against them is an abuse of the process of the Court.
31. On the first limb. It is trite that the existence or otherwise of a reasonable cause of action is determined by looking at the pleadings as they stand, assuming the facts pleaded therein to be true, and asking whether those facts disclose a claim with some chance of success. It is equally trite that a cause of action is assessed as at the date of the institution of the suit. In the instant case, the Originating Summons was taken out on 17 th May, 2007, at which time the Applicants were, on their own admission, the registered proprietors of land parcels Nos. Kwale/Diani Complex/393 and 395. Indeed, the 2 nd Defendant candidly conceded at paragraph 15 of his Supporting Affidavit that:-
“the suit was initially filed correctly as against us since we owned the properties.”
That concession, in the considered view of this Court, is fatal to the first limb of the application. A suit that was properly constituted at inception, and which pleads occupation of the suit parcels for a period well in excess of the statutory twelve (12) years, discloses, prima facie, a reasonable cause of action in adverse possession as against the then registered proprietors.
32. The Applicants’ contention is, in essence, that the cause of action has since been overtaken by events by dint of the sale and transfer of the parcels to third parties. Whether the said transfers defeat or extinguish the accrued claim is a substantive question of law and fact which the Court addresses under ISSUE No. c) hereinbelow; suffice it to state at this juncture that, for the reasons elaborated thereunder, the transfers do not plainly and obviously extinguish the claim, and the first limb of the attack must therefore fail.
33. However, there is a more fundamental and dispositive consideration which, in the view of this Court, renders the prayer for striking out wholly misconceived. As already observed, the claims against the Applicants in respect of parcels Nos. Kwale/Diani Complex/393 and 395 stand determined by the default judgment entered on 7 th January, 2010, which Judgment had never been set aside and which the Court of Appeal expressly noted “ remains unchallenged.” The Court of Appeal, whilst setting aside the striking out orders of 16 th July, 2020 in so far as they related to the suit as against the 2 nd , 3 rd , 4 th , and 5 th Defendants vide order (a) of its Judgment, deliberately and advisedly reinstated the suit for hearing and determination on its merits only as against the 4 th and 5 th Defendants vide order (b) thereof, precisely because the claims against the 2 nd and 3 rd Defendants had already been determined by way of the said default judgment.
34. The inescapable consequence of the foregoing is that, as against the Applicants, there was presently no live, pending and undetermined claim capable of being struck out under the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010. A claim which had merged into a Judgment could not be struck out. It could only be assailed by way of an application to set aside that Judgment, by review, or on appeal. The Applicants have, with respect, mounted their horse facing the wrong direction. Their remedy, if they be aggrieved and so advised, lies in a properly grounded application to set aside the default Judgment of 7 th January, 2010 under Order 10 Rule 11 of the Civil Procedure Rules, 2010 – wherein the contested question of service of the Originating Summons would fall for interrogation – and not in an application to strike out a suit which, as against them, has already been determined.
35. Turning to the second limb. The Applicants contend that the suit is an abuse of the process of the Court principally on account of the Respondent’s failure to serve them with the Notice of Appeal and the record in Civil Appeal No. E110 of 2021, contrary to Rule 79 of the Court of Appeal Rules, 2020. This Court has anxiously considered this grievance, which, if borne out, is by no means a trifling one. However, the grievance is, with respect, directed at the wrong forum. The complaint of non-service of the appeal impugns the regularity of the proceedings and Judgment of the Court of Appeal. This Court sits below the Court of Appeal in the judicial hierarchy ordained by Article 162 as read with Articles 164 and 165 of the Constitution. It possesses neither appellate nor supervisory jurisdiction over the Court of Appeal, and it cannot sit on appeal over, review, vary, circumvent or whittle down the Judgment and Orders of that superior Court. By dint of the doctrine of stare decisis and the hierarchy of Courts, the Judgment of the Court of Appeal in Civil Appeal No. E110 of 2021 binds this Court and the parties hereto in all its terms, unless and until it is set aside, reviewed or varied by the Court of Appeal itself or by the Supreme Court in accordance with the law. Any party aggrieved by the said Judgment on account of non-service or non-joinder must ventilate that grievance before the appellate Court itself.
36. The Court would, in any event, observe that the abuse-of-process shoe may well sit uneasily on the other foot. The record discloses that the Memorandum of Appeal in Civil Appeal No. E110 of 2021 was dated 24 th November, 2021. The Applicants, on their own showing, removed the cautions vide entries of 6 th December, 2021 and 6 th December, 2022, purportedly sold the suit parcels in the year 2023, and had the transfers registered as late as 25 th July, 2024 – all during the pendency of the appeal. Under the equitable “ doctrine of lis pendens”, which the Court of Appeal in the case of:- “ Naftali Ruthi Kinyua (Supra)” affirmed remains of general application in Kenya notwithstanding the repeal of Section
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1. What is placed before this Honourable Court for its determination is the Notice of Motion application dated 11 th February, 2026 filed by the 2 nd and 3 rd Defendants/Applicants herein, IBRAHIM NJOROGE KIMANI and BETINA WALTHER (Hereinafter rereferred to as “The Applicants”) respectively. The application is expressed to be brought under the provisions of Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A and 3A of the Civil Procedure Act, Cap. 21.
2. Upon service, while opposing the application, the Plaintiff/Respondent (Hereinafter rereferred to as “The Respondents”) filed a rely through his Replying Affidavit dated 1 st April, 2026.
II. The case by the 2 nd & 3 rd Defendants/Applicants
3. The 2 nd & 3 rd Defendants/Applicants seek the following orders: -
a) Spent.
b) THAT this Honourable Court be pleased to grant leave for the 2 nd and 3 rd Defendants to enter appearance.
c) THAT the Honourable Court do strike out this suit as against the 2 nd and 3 rd Defendants as there is no reasonable cause of action against them and the suit is an abuse of the process of the Court.
d) THAT the costs of this application be borne by the Plaintiff.
4. The application is premised on the grounds set out on its face, testimonial facts and averments supported by the annexed affidavit of the 2 nd Defendant/Applicant, MR. IBRAHIM NJOROGE KIMANI, sworn on 11 th February, 2026, both on his own behalf and on behalf of the 3 rd Defendant/Applicant, together with the annextures thereto marked as “IK-1” to “IK-7” respectively. He averred as follows that:-
a) He was an adult male of sound mind conversant with the facts surrounding this matter and the 2 nd Defendant herein.
b) He was solely registered as the proprietor of land parcel No. Kwale/Diani Complex/393 measuring approximately 0.40 Ha, and jointly registered with the 3 rd Defendant as the proprietors of land parcel No. Kwale/Diani Complex/395 measuring approximately 0.34 Ha, both parcels being adjacent to each other and situate in the Diani Beach Mwakamba area within Kwale County.
c) He acquired the properties in the years 1993 and 1994 respectively, took possession thereof, erected a house and sunk a borehole thereon which he used for farming purposes.
d) Sometime in the year 2005, he left the country for the United Republic of Tanzania for work-related purposes, and would return from time to time to check on his properties. In support thereof. He annexed copies of his passport bio-data pages and sundry immigration endorsements marked as “IK - 1”.
e) Sometime on or about 7 th July, 2021, during one of his routine visits to Ukunda, he applied for green card searches on the two properties, which searches revealed that cautions had been entered against both titles on 15 th November, 2009 by virtue of a court order emanating from this matter under its previous citation, ELC O.S No. 120 of 2007. He annexed copies of the said green card searches marked as “IK-2” and “IK-3”.
f) He thereupon instructed his Advocates on record to peruse the court file, which perusal revealed that a request for Judgment had been made on 21 st October, 2009 and allowed, and default judgment entered against the Applicants.
g) Further, that a Ruling had been delivered on 16 th July, 2020 dismissing the suit against them.
h) The suit having been dismissed, he applied for and was issued with a Decree certifying the same, which he lodged at the Kwale Land Registry and used to procure the removal of the said cautions from the two titles. He annexed a copy of the Order issued on 1 st December, 2021 marked as “IK-4”.
i) He thereafter continued to utilize the properties and later proceeded to sell the same sometime in the year 2023, with the transfers being effected in the year 2024, and annexed copies of the resultant green card entries marked as “IK-5” and “IK-6”.
j) He only got wind of this suit in December, 2025 from the 5 th Defendant, who informed him that a Judgment of the Court of Appeal had been rendered reinstating the suit.
k) At all material times, the Applicants had no knowledge that there was ever a suit against them,
l) They were never served with any documents relating to this suit, whether under its current citation, its former citation No. 120 of 2007, or in respect of Civil Appeal No. E110 of 2021; and that they never participated in the said appeal. He annexed a copy of the Judgment of the Court of Appeal marked as “IK-7”.
m) Immediately before and after the said sale, there was no court order prohibiting any transaction on the properties.
n) Should this matter proceed, the Court would issue an order that would not affect them.
o) The Court may issue orders in vain or less, should it proceed without this Application determined, it may prejudice, embarrass or delay the fair trial of the suit.
p) There was no cause of action against them and as such this suit ought to be struck out against them.
q) They had approached the Court in good faith without wasting judicial time.
r) They prayed the Court to grant them the orders as sought.
III. The responses by the Plaintiff/Respondent
a) In opposing the application, the Respondent swore his Replying Affidavit on 1 st April, 2026. He deposed as follows that:-
b) He was the Plaintiff/Respondent herein and therefore competent to swear the affidavit; that he had read and understood the Notice of Motion application dated 11 th February, 2026 together with the Supporting Affidavit.
c) The application was misconceived, bad in law and an abuse of the process of this Honourable Court and ought to be dismissed with costs.
d) The Plaintiff/Respondent deposed that the Applicants sought to have the suit struck out on the ground that the suit properties have allegedly been sold to third parties, a ground which he vehemently denied as capable of defeating or extinguishing an accrued claim for adverse possession.
e) It was a well-established principle of law that rights acquired under land adverse possession was overriding interests which run with the land, irrespective of any change in ownership.
f) Once time begins to run for purposes of adverse possession, it does not stop merely because the registered owner transfers or disposes of the suit property to a third party.
g) The alleged purchasers, if any, merely stepped into the shoes of the previous registered proprietors and took the land subject to the overriding interests, including his accrued rights of adverse possession.
h) In the circumstances, the proper legal course, if at all necessary, would be an amendment of the pleadings to enjoin or substitute the current registered proprietors as parties to the suit, rather than the drastic remedy of striking out.
i) Striking out the suit would be draconian, unjust and contrary to the principles of substantive justice, as it would defeat a claim that had already accrued by operation of law.
j) The Court of Appeal in Civil Appeal No. E110 of 2021, sitting at Mombasa and constituted by Hon. D.K. Musinga, P.J.A., Hon. Dr. K.I. Laibuta, J.A. and Hon. G.W. Ngenye-Macharia, J.A., ordered the reinstatement of this matter in favour of the Plaintiff/Respondent therein at paragraphs 38 to 40 of its Judgment, a copy whereof he annexed and marked as “HA-1”.
k) In conclusion, the Plaintiff/Respondent deposed that the Applicants’ application was a deliberate attempt to defeat justice and to sanitize an already accrued claim of adverse possession through the transfer of title. He urged this Honourable Court to find that the application lacked merit and to dismiss it with costs.
IV. Submissions
5. On 15 th April, 2026 while all the parties were present in Court, direction were granted to have the application be canvassed by way of written Submissions.
6. Pursuant to that parties complied and Court reserved 15 th July, 2026 as the date to render its Ruling accordingly.
A. The Written Submissions by the 2nd and 3rd Defendants/Applicants
7. On 3 rd July, 2026, the Law Firm of Messrs. Mwangi Kihira & Company Advocates filed written submissions on behalf of the 2 nd & 3 rd Defendants/Applicants. Mr. Kihira Advocate commenced by rehashing the facts of the application, submitting that the Plaintiff/Respondent had previously sued the Applicants in ELC O.S No. 120 of 2007 and that the suit was dismissed. That on the strength of the said order, the Applicants disposed of the suit properties; that the Applicants were never privy to Civil Appeal No. E110 of 2021 instituted by the Respondent challenging the dismissal of the suit; and that, without knowledge of the said proceedings, they legally transferred their interest in the land to third parties, whereby the Respondent has no cause of action subsisting against them.
8. The Learned Counsel averred that the Respondent had a duty to inform the Applicants of the said appeal and to serve them therewith, and that it is against the rules of natural justice for a litigant to fail to serve another party and thereafter hide under the cover of the doctrine of lis pendens.
9. On the law relating to the striking out of pleadings. The Learned Counsel invoked the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010 and placed reliance on the decision of the Court of Appeal in the case of:- “ Kivanga Estates Limited – Versus – National Bank of Kenya Limited [2017] KECA 591 (KLR)” , where the Learned Judges of Appeal opined as follows:-
“….It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction, capable of bringing a suit to an end before it has even been heard on merit, yet a party to civil litigation is not to be deprived lightly of his right to have his suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The flip side is that it is also unfair to drag a person to the seat of justice when the case brought against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations……”
10. In conclusion, Counsel submitted that the provision of Rule 79 of the Court of Appeal Rules, 2020 mandates the service of a Notice of Appeal upon all persons affected by an appeal; that the Respondent could not have expected the Applicants to have knowledge of the appeal when the same was never served upon them; and that equity favours the vigilant and not the indolent. The Learned Counsel accordingly prayed that the application be allowed as prayed.
B. The Written Submissions by the Plaintiff/Respondent
11. On his part, the Plaintiff/Respondent, through the Law Firm of Messrs. Mbwiza & Company Advocates, filed written submissions dated 15 th May, 2026. Mr. Mwanjama Advocate submitted that the application was misconceived, legally untenable, and intended to defeat an accrued claim of adverse possession through the transfer of title during the pendency of proceedings. Counsel framed the following issues for determination:
i. whether the transfer or sale of the suit property defeats a claim for adverse possession;
ii. whether accrued rights under adverse possession constitute overriding interests binding upon subsequent purchasers;
iii. whether the Applicants have established grounds to warrant the striking out of the suit; and
iv. whether the proper remedy is joinder and/or substitution of parties rather than striking out.
12. On the first issue, Learned Counsel argued that it was now settled law that once time begins to run for purposes of adverse possession, such time does not stop merely because the registered proprietor transfers the property to another person. Counsel invoked the provision of Section 7 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya, which bars the recovery of land after the expiration of twelve (12) years from the date the cause of action accrued, as read together with Sections 13 and 17 of the said Act, which extinguishes the title of the registered proprietor once the statutory period lapses. Reliance was placed on the decision of the Court of Appeal in the case of:- “ Githu – Versus – Ndeete [1984] KLR 776” , where the Court emphatically held that the transfer of land does not interrupt adverse possession, expressing itself thus:-
“The mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession.”
13. Similarly, the Learned Counsel relied on the case of:- Kasuve – Versus – Mwaani Investments Limited & 4 Others [2004] 1 KLR 184 , where the Court of Appeal held that adverse possession attaches to the land itself and binds successors in title. Counsel submitted that any alleged purchasers merely stepped into the shoes of the previous registered proprietors and took title subject to the accrued overriding interests, and that accordingly, the Applicants cannot sanitize an already accrued adverse possession claim through the transfer of title.
14. On the second issue, Counsel invoked the provision of Section 28(h) of the Land Registration Act, No. 3 of 2012, which recognizes as overriding interests the rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of actions, the legal effect being that such interests bind the land even where they are not noted in the register. The Learned Counsel further relied on the case of:- “ Mbira – Versus – Gachuhi [2002] 1 E.A. 137” , where the Court held that a person who proves continuous, open and uninterrupted occupation of land for the statutory period acquires enforceable rights over the land. Counsel submitted that the Respondent has pleaded and demonstrated occupation spanning several decades and therefore possesses rights protected by law, which the alleged transfers cannot extinguish.
15. On the third issue, Counsel submitted that the law regarding the striking out of pleadings is settled, and that Courts have consistently held that striking out is a draconian remedy which should only be exercised in the clearest of cases. Counsel placed reliance on the celebrated decision in the case of “ D.T. Dobie & Company (Kenya) Limited – Versus – Muchina [1982] KLR 1” , where the Court of Appeal held that no suit ought to be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action. The Learned Counsel submitted that the present suit raises substantive and triable issues relating to ownership by adverse possession, occupation, limitation, overriding interests and the legality of transfers effected during the subsistence of occupation, which issues can only properly be determined through a full hearing, and that the Applicants have therefore failed to meet the threshold for striking out.
16. On the fourth issue, the Counsel submitted that, assuming without admitting that the transfers occurred, the proper legal recourse would be the amendment of pleadings and the joinder or substitution of the current registered proprietors, and invoked the provision of Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 which grants this Honourable Court wide discretion to add parties whose presence is necessary for the effective and complete adjudication of the dispute. Counsel urged that the Court should lean towards sustaining suits and determining disputes on their merits rather than terminating proceedings on technicalities, in accord with the command of Article 159(2)(d) of the Constitution of Kenya, 2010, which obligates Courts to administer justice without undue regard to procedural technicalities.
17. Finally, the Learned Counsel asserted that the Court of Appeal in Civil Appeal No. E110 of 2021 reinstated this matter and expressly directed that the suit proceeds for hearing; that the Applicants’ present application is therefore an indirect attempt to defeat and circumvent the appellate Court’s decision; and that this Honourable Court should not permit litigants to undermine the authority and effect of a superior Court’s judgment through the transfer of title or procedural manoeuvres.
18. The Learned Counsel accordingly prayed that the Notice of Motion application dated 11 th February, 2026 be dismissed with costs and that the suit do proceed to full hearing on its merits.
V. Analysis and Determination
19. Having keenly perused and considered the Notice of Motion application, the Supporting Affidavit and its annextures, the Replying Affidavit and its annexture, the rival written submissions by the parties, the cited authorities and the relevant provisions of the Constitution of Kenya, 2010 and the applicable statutes.
20. For the Court to arrive at an informed, fair, just and reasonable decision, it has framed the following four (4) salient issues for its determination: -
a) Whether the 2 nd and 3 rd Defendants/Applicants should be granted leave to enter appearance in the suit and file their requisite documents;
b) Whether the suit as against the 2 nd and 3 rd Defendants/Applicants ought to be struck out for disclosing no reasonable cause of action and/or for being an abuse of the process of the Court;
c) Whether the alleged sale and transfer of the suit properties to third parties defeats and/or extinguishes the Plaintiff’s/Respondent’s claim of land adverse possession; and
d) Who should bear the costs of the application?
ISSUE No. a) Whether the 2 nd and 3 rd Defendants/Applicants should be granted leave to enter appearance in the suit;
21. Under this sub-heading, the Court proceeds from the fundamental premise that the right to a fair hearing is a constitutionally entrenched and non-derogable right. Article 50(1) of the Constitution of Kenya, 2010 provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Article 25(c) of the Constitution lists the right to a fair trial among the fundamental rights and freedoms that may not be limited. The audi alteram partem rule, that no man shall be condemned unheard, is a cornerstone of natural justice and of our adjudicative architecture.
22. The Applicants have deposed, and the same has not been controverted by any affidavit evidence to the contrary, that they only became aware of the existence of these proceedings in December, 2025 through the 5 th Defendant. While the record shows that a request for Judgment was made on 21 st October, 2009 and that default Judgment was entered against the Applicants on 7 th January, 2010 – which presupposes that the Court was then satisfied as to service of the Originating Summons upon them – the question of whether the Applicants were in fact and validly served remains contested, and is not one this Court needs to resolve conclusively at this interlocutory stage.
23. What the Court must underscore, however, is the true legal posture of the Applicants in these proceedings. There subsists on the record a default judgment entered against them on 7 th January, 2010, which judgment has never been set aside, varied or discharged. Indeed, the Court of Appeal, at paragraph 38 of its Judgment in Civil Appeal No. E110 of 2021, took express cognizance of this fact when it observed as follows:-
“Moreover, the deceased’s claim against the 2 nd and 3 rd Respondents with respect to parcel Nos. Kwale/Diani Complex/393 and 395 had already been determined before HCCC No. 115 of 2011 was instituted when the High Court entered Judgment in default against the 2 nd and 3 rd Respondents on 7 th January 2010 in ELC Case No. 120 of 2007 (OS).”
24. The mere entry of appearance at this juncture, without more, cannot and does not dislodge a subsisting Judgment. The procedural vehicle available to a defendant against whom a default Judgment has been entered is an application for the setting aside of that Judgment under Order 10 Rule 11 of the Civil Procedure Rules, 2010 which clothes the Court with a wide and unfettered discretion to set aside or vary a default judgment upon such terms as are just, particularly where the defendant demonstrates that he was never served or that he has a defence raising triable issues.
25. Be that as it may, this Court is enjoined by the provision of Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities. The Applicants cannot meaningfully ventilate any application – including one for the setting aside of the default judgment, should they be so advised – without first being permitted to formally come on record.
26. In the circumstances, and in furtherance of the Applicants’ inviolable right to be heard, the Court finds and holds that the prayer for leave to enter appearance is merited and hence it is hereby granted.
ISSUE No. b) Whether the suit as against the 2 nd and 3 rd Defendants/Applicants ought to be struck out for disclosing no reasonable cause of action and/or for being an abuse of the process of the Court.
27. Under this Sub heading, the Honourable Court will deliberate on the jurisprudence on the aspect of striking out pleadings and/or suits. The Applicants have invoked the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010, which stipulates as follows:-
“15.(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a) it discloses no reasonable cause of action or defence in law; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. ”
28. The principles governing the exercise of this jurisdiction are well beaten paths. The remedy of striking out is a draconian one, to be resorted to sparingly and only in the plainest and most obvious of cases. In the “ classicus locus” case of “ D.T. Dobie & Company (Kenya) Limited – Versus – Muchina (Supra)” Madan, J.A. (as he then was) famously held that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and that the Court should aim at sustaining rather than terminating a suit, for a cause of action, however weak, ought to be allowed to proceed to trial where it can be illuminated by evidence.
29. Similarly, in the case of:- “ Co-operative Merchant Bank Limited – Versus – George Fredrick Wekesa, Civil Appeal No. 54 of 1999” , the Court of Appeal summarized the principles thus: the power to strike out a pleading is discretionary; striking out is a draconian act which may only be resorted to in plain cases; whether or not a case is plain is a matter of fact; and a Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment. The same threshold was restated in the case of:- “ Yaya Towers Limited – Versus – Trade Bank Limited (In Liquidation), Civil Appeal No. 35 of 2000” and in the “Kivanga Estates Limited case (supra)” so heavily relied upon by the Applicants themselves, which enjoins the Court to balance the two rival considerations of not driving a litigant away from the seat of justice on the one hand, and not unfairly dragging a person to the seat of justice on a clearly hopeless claim on the other.
30. Guided by the above well set out legal principles, the Court now interrogates the twin limbs of the Applicants’ attack. These are namely: firstly, that there is no reasonable cause of action against them; and secondly, that the suit as against them is an abuse of the process of the Court.
31. On the first limb. It is trite that the existence or otherwise of a reasonable cause of action is determined by looking at the pleadings as they stand, assuming the facts pleaded therein to be true, and asking whether those facts disclose a claim with some chance of success. It is equally trite that a cause of action is assessed as at the date of the institution of the suit. In the instant case, the Originating Summons was taken out on 17 th May, 2007, at which time the Applicants were, on their own admission, the registered proprietors of land parcels Nos. Kwale/Diani Complex/393 and 395. Indeed, the 2 nd Defendant candidly conceded at paragraph 15 of his Supporting Affidavit that:-
“the suit was initially filed correctly as against us since we owned the properties.”
That concession, in the considered view of this Court, is fatal to the first limb of the application. A suit that was properly constituted at inception, and which pleads occupation of the suit parcels for a period well in excess of the statutory twelve (12) years, discloses, prima facie, a reasonable cause of action in adverse possession as against the then registered proprietors.
32. The Applicants’ contention is, in essence, that the cause of action has since been overtaken by events by dint of the sale and transfer of the parcels to third parties. Whether the said transfers defeat or extinguish the accrued claim is a substantive question of law and fact which the Court addresses under ISSUE No. c) hereinbelow; suffice it to state at this juncture that, for the reasons elaborated thereunder, the transfers do not plainly and obviously extinguish the claim, and the first limb of the attack must therefore fail.
33. However, there is a more fundamental and dispositive consideration which, in the view of this Court, renders the prayer for striking out wholly misconceived. As already observed, the claims against the Applicants in respect of parcels Nos. Kwale/Diani Complex/393 and 395 stand determined by the default judgment entered on 7 th January, 2010, which Judgment had never been set aside and which the Court of Appeal expressly noted “ remains unchallenged.” The Court of Appeal, whilst setting aside the striking out orders of 16 th July, 2020 in so far as they related to the suit as against the 2 nd , 3 rd , 4 th , and 5 th Defendants vide order (a) of its Judgment, deliberately and advisedly reinstated the suit for hearing and determination on its merits only as against the 4 th and 5 th Defendants vide order (b) thereof, precisely because the claims against the 2 nd and 3 rd Defendants had already been determined by way of the said default judgment.
34. The inescapable consequence of the foregoing is that, as against the Applicants, there was presently no live, pending and undetermined claim capable of being struck out under the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010. A claim which had merged into a Judgment could not be struck out. It could only be assailed by way of an application to set aside that Judgment, by review, or on appeal. The Applicants have, with respect, mounted their horse facing the wrong direction. Their remedy, if they be aggrieved and so advised, lies in a properly grounded application to set aside the default Judgment of 7 th January, 2010 under Order 10 Rule 11 of the Civil Procedure Rules, 2010 – wherein the contested question of service of the Originating Summons would fall for interrogation – and not in an application to strike out a suit which, as against them, has already been determined.
35. Turning to the second limb. The Applicants contend that the suit is an abuse of the process of the Court principally on account of the Respondent’s failure to serve them with the Notice of Appeal and the record in Civil Appeal No. E110 of 2021, contrary to Rule 79 of the Court of Appeal Rules, 2020. This Court has anxiously considered this grievance, which, if borne out, is by no means a trifling one. However, the grievance is, with respect, directed at the wrong forum. The complaint of non-service of the appeal impugns the regularity of the proceedings and Judgment of the Court of Appeal. This Court sits below the Court of Appeal in the judicial hierarchy ordained by Article 162 as read with Articles 164 and 165 of the Constitution. It possesses neither appellate nor supervisory jurisdiction over the Court of Appeal, and it cannot sit on appeal over, review, vary, circumvent or whittle down the Judgment and Orders of that superior Court. By dint of the doctrine of stare decisis and the hierarchy of Courts, the Judgment of the Court of Appeal in Civil Appeal No. E110 of 2021 binds this Court and the parties hereto in all its terms, unless and until it is set aside, reviewed or varied by the Court of Appeal itself or by the Supreme Court in accordance with the law. Any party aggrieved by the said Judgment on account of non-service or non-joinder must ventilate that grievance before the appellate Court itself.
36. The Court would, in any event, observe that the abuse-of-process shoe may well sit uneasily on the other foot. The record discloses that the Memorandum of Appeal in Civil Appeal No. E110 of 2021 was dated 24 th November, 2021. The Applicants, on their own showing, removed the cautions vide entries of 6 th December, 2021 and 6 th December, 2022, purportedly sold the suit parcels in the year 2023, and had the transfers registered as late as 25 th July, 2024 – all during the pendency of the appeal. Under the equitable “ doctrine of lis pendens”, which the Court of Appeal in the case of:- “ Naftali Ruthi Kinyua (Supra)” affirmed remains of general application in Kenya notwithstanding the repeal of Section
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