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Introduction
1. The applicant took up the originating summons dated 23rd July, 2024 and amended on 30th January, 2025 for determination of the question as to whether he has become entitled to the parcel of land known as Irong/Sergoit/458 (hereinafter referred to as the suit property) on account of having been in adverse possession thereof.
2. In the affidavit sworn in support of the application, the applicant acknowledges that the suit property was reverted to the Estate of Soniako Kiprop, whose Estate is represented by the 2nd respondent vide an order of court issued in Eldoret High Court Probate & Administration Cause No.260 of 2015. Nevertheless, the applicant contends that he has acquired interest in the suit property on account of having been in adverse possession thereof.
3. The 2nd respondent filed response to the applicant’s suit/application namely the replying affidavit he swore on 16th May, 2025 in which he inter alia contends that the applicant’s claim for adverse possession against his mother’s estate is misplaced, incompetent, premature and does not meet the legal threshold that has been set.
4. The 2nd respondent also filed a notice of preliminary objection seeking to dismiss the application suit together with the application for interlocutory reliefs accompanying it, dated 23d June 2025, on the grounds that the suit offends the provisions of section 9(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya and that the claim of adverse possession raised by the applicant does not meet the threshold under section 38 of the Limitation of Actions Act.
5. Pursuant to directions issued on 23rd July, 2025 the preliminary objection and the application for interlocutory reliefs were disposed of together by way of written submissions.
SUBMISSIONS
2nd Respondent’s submissions
6. In his submissions filed on 23rd September, 2025 the 2nd respondent identifies three issues for the court’s determination namely: -
i. Whether the notice of preliminary objection is merited;
ii. Whether the suit offends the provisions of section 9(2) of the Limitation of Actions Act (LAA); and
iii. Whether the claim of adverse possession raised by the applicant meets the threshold stipulated under section 38 of the Limitation of Actions Act.
7. On whether the preliminary objection is merited, the 2nd respondent has cited the cases of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696 and Oraro Associates vs. Cooperative Bank Ltd (2001) e KLR for what amounts to a preliminary objection and submitted that the grounds raised in its preliminary objection are pure points of law, discernable from the plaintiff’s pleadings, admitted facts and the applicable statutes.
8. On whether the suit offends the provisions of section 9(2) of the LAA, Cap 22 Laws of Kenya, the 2nd respondent submits that the suit is fundamentally flawed as it is instituted against the legal administrators of deceased persons, Thomas Kimaiyo Cherop and Saniako Kiprop. Based on the provisions of Section 9(2) which he has cited in extensor, the 2nd respondent submits that the applicant’s suit, though framed as a claim for adverse possession under section 38 of LAA, seeks to extinguish proprietary rights of a deceased person’s estate.
9. Terming the applicant’s suit an action for recovery of land from a deceased person’s estate, the 2nd respondent submits that the possession of the land by the applicant in 2012, when the owner had been dead for over 24 years, did not cause the right of action of the late Saniako Kiprop to be extinguished.
10. It is the 2nd respondent’s case that the applicant would only have a course of action based on adverse possession if and only if he had been in possession of the suit property for a period of 12 years preceding the death of the registered owner of the suit property. In that regard, the 2nd respondent cites the case of Ahmed Abdulkarim & Another vs Members for Land Mines & Another, Civil appeal (1958) EA, where it was observed that the limitation of action period shall not begin to run unless the true owner is aware of that someone else is in possession and is holding it adversely to himself.
11. Explaining that he was not the administrator of the estate of the deceased at the time the applicant allegedly took possession of the suit property, the 2nd respondent submits that a cause of action cannot lie against an estate before it is administered.
12. As to whether the claim of adverse possession raised by the applicant meets the threshold stipulated under section 38 of the LAA, the 2nd respondent submits that occupation of the suit property by the respondent before it was registered in the name of the estate of the late Saniako Kiprop following the orders of the court issued on 25th November, 2024 in Eldoret High Court P & A Cause No.260 of 2015, cannot found a cause of action against the estate of Saniako Kiprop.
13. The respondent submits that the possession of the suit property was interrupted as there was a case filed challenging the circumstances under which the suit property was transferred to the applicant among other persons with interest in the suit property. In that regard, the 2nd respondent has placed reliance on the case of Titus Kamau vs. Attorney General & 2 others (2018) e KLR where it was held: -
“The filing of a suit or legal proceedings by the registered owner or his representative seeking to recover possession, interrupts the running of time for adverse possession.”
14. The 2nd respondent further submits that the applicant’s claim for adverse possession is unmaintainable because it stems from alleged sale of the suit property by the then registered proprietor of the suit property, Thomas Kimaiyo Cherop, and not hostile adverse claim against the true owner. In that regard, the 2nd respondent relies on the decision in the case of Gabriel Mbui vs. Mukindia Maranya (1993)e KLR where Kuloba J, as he then was stated/held:-
“…Any kind of permissive use, as by a tenant, licensee contract purchaser in possession, or easement holder, is rightful and not hostile. Any time an adverse possessor and owner have discussed the adverse possession, permissive agreement may have occurred and that destroys adverse possession”.
15. Maintaining that the applicant’s claim for adverse possession is unmaintainable on account of the above reasons, the 2nd respondent urges this court to upheld the preliminary objection, dismiss the originating summons with costs to him.
Applicant’s submissions
16. In his submissions filed on 23rd September, 2025 the applicant has identified three issues for the court’s determination. These are: -
i. Whether the notice of preliminary objection dated 22nd July 2025 is merited;
ii. Whether the plaintiff’s suit offends section 9(2) of the Limitation of Actions Act; and
iii. Who should bear the costs?
17. On Whether the notice of preliminary objection dated 22nd July 2025 is merited, the plaintiff submits that the preliminary objection is not merited because under section 9(2) of LAA, the course of action accrues from the date of death of the deceased; that the plaintiff applicant had been in possession of the suit property from 2012 which is more than 12 years. The plaintiff acknowledges that pursuant to the orders issued in the Eldoret succession court (supra), the suit property reverted to the Estate of Soniako Kiprop but contends that the reversion of the suit property to the estate of the deceased did not interrupt his possession of the suit property or stop time from running in his favour. In that regard, the plaintiff places reliance on the case of Githu v Ndeete 1984 klr 776 1986 where it was held that mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession.
18. The plaintiff further submits that the issue as to whether he has become entitled to 9.8 acres comprised in the suit property on account of having been in adverse possession thereof, is an issue that can only be dealt with in the main suit and not on a preliminary objection.
19. Regarding his application for interlocutory reliefs, the applicant submits that he has made up a case for being granted the orders sought as he has demonstrated that he is the one in use and occupation of the suit property.
20. On costs, the plaintiff submits that under section 27(1) of the Civil Procedure Act, costs follow the event, meaning the successful party is entitled to costs unless there are compelling reasons for the court to decide otherwise.
21. Maintaining that he has made up a case for being granted the orders sought, the plaintiff urges the court to dismiss the suit with costs to him.
Analysis and determination
22. I have read and considered the preliminary objection raised by the 2nd respondent and the submissions filed by the parties in respect thereof.
23. The sole issue arising from the preliminary objection and the submissions by the parties to the suit is whether the 2nd respondent has made up a case for striking of the applicant’s case. In that regard, it is common ground that the applicant took possession of the suit property, which property has since been reverted by the court to the Estate Saniako Kiprop, in 2012.
24. The order of the court reverting the suit property to the Estate of the Saniako Kiprop has a bearing on the possession of the suit property by the applicant. This is so because by dint of the provisions of Section 45 of the Law of Succession Act, Cap 160 Laws of Kenya, the taking of possession of the suit property which forms part of the Estate of a deceased person, Saniako Kiprop, amounted to intermeddling with the Estate of a deceased person, which is not only unlawful but also a criminal offence.
25. The applicant cannot found his action on possession deemed by law to be unlawful.
26. In view of the foregoing, I agree with the 2nd respondent’s submissions that the applicant’s claim is unmaintainable against the Estate of Saniako Kiprop, deceased, which Estate had not been administered at the time the applicant purportedly took possession of it.
27. The upshot of the foregoing is that the preliminary objection taken by the 2nd respondent is merited. Consequently, I uphold it and dismiss the applicant’s suit/originating summons dated 23rd July 2024 and amended on 30th January 2025 with costs to the 2nd respondent.
28. Orders accordingly.
Dated, signed and delivered this 3rd day of November, 2025.
Ruling delivered Virtually in the presence of:
Mr Kipngetich h/b for Mr Maritim for the Applicant.
N/A for the 1st Respondent
Mr Tarigo for the 2ndRespondent.
Christine: Court Assistant
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Introduction
1. The applicant took up the originating summons dated 23rd July, 2024 and amended on 30th January, 2025 for determination of the question as to whether he has become entitled to the parcel of land known as Irong/Sergoit/458 (hereinafter referred to as the suit property) on account of having been in adverse possession thereof.
2. In the affidavit sworn in support of the application, the applicant acknowledges that the suit property was reverted to the Estate of Soniako Kiprop, whose Estate is represented by the 2nd respondent vide an order of court issued in Eldoret High Court Probate & Administration Cause No.260 of 2015. Nevertheless, the applicant contends that he has acquired interest in the suit property on account of having been in adverse possession thereof.
3. The 2nd respondent filed response to the applicant’s suit/application namely the replying affidavit he swore on 16th May, 2025 in which he inter alia contends that the applicant’s claim for adverse possession against his mother’s estate is misplaced, incompetent, premature and does not meet the legal threshold that has been set.
4. The 2nd respondent also filed a notice of preliminary objection seeking to dismiss the application suit together with the application for interlocutory reliefs accompanying it, dated 23d June 2025, on the grounds that the suit offends the provisions of section 9(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya and that the claim of adverse possession raised by the applicant does not meet the threshold under section 38 of the Limitation of Actions Act.
5. Pursuant to directions issued on 23rd July, 2025 the preliminary objection and the application for interlocutory reliefs were disposed of together by way of written submissions.
SUBMISSIONS
2nd Respondent’s submissions
6. In his submissions filed on 23rd September, 2025 the 2nd respondent identifies three issues for the court’s determination namely: -
i. Whether the notice of preliminary objection is merited;
ii. Whether the suit offends the provisions of section 9(2) of the Limitation of Actions Act (LAA); and
iii. Whether the claim of adverse possession raised by the applicant meets the threshold stipulated under section 38 of the Limitation of Actions Act.
7. On whether the preliminary objection is merited, the 2nd respondent has cited the cases of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696 and Oraro Associates vs. Cooperative Bank Ltd (2001) e KLR for what amounts to a preliminary objection and submitted that the grounds raised in its preliminary objection are pure points of law, discernable from the plaintiff’s pleadings, admitted facts and the applicable statutes.
8. On whether the suit offends the provisions of section 9(2) of the LAA, Cap 22 Laws of Kenya, the 2nd respondent submits that the suit is fundamentally flawed as it is instituted against the legal administrators of deceased persons, Thomas Kimaiyo Cherop and Saniako Kiprop. Based on the provisions of Section 9(2) which he has cited in extensor, the 2nd respondent submits that the applicant’s suit, though framed as a claim for adverse possession under section 38 of LAA, seeks to extinguish proprietary rights of a deceased person’s estate.
9. Terming the applicant’s suit an action for recovery of land from a deceased person’s estate, the 2nd respondent submits that the possession of the land by the applicant in 2012, when the owner had been dead for over 24 years, did not cause the right of action of the late Saniako Kiprop to be extinguished.
10. It is the 2nd respondent’s case that the applicant would only have a course of action based on adverse possession if and only if he had been in possession of the suit property for a period of 12 years preceding the death of the registered owner of the suit property. In that regard, the 2nd respondent cites the case of Ahmed Abdulkarim & Another vs Members for Land Mines & Another, Civil appeal (1958) EA, where it was observed that the limitation of action period shall not begin to run unless the true owner is aware of that someone else is in possession and is holding it adversely to himself.
11. Explaining that he was not the administrator of the estate of the deceased at the time the applicant allegedly took possession of the suit property, the 2nd respondent submits that a cause of action cannot lie against an estate before it is administered.
12. As to whether the claim of adverse possession raised by the applicant meets the threshold stipulated under section 38 of the LAA, the 2nd respondent submits that occupation of the suit property by the respondent before it was registered in the name of the estate of the late Saniako Kiprop following the orders of the court issued on 25th November, 2024 in Eldoret High Court P & A Cause No.260 of 2015, cannot found a cause of action against the estate of Saniako Kiprop.
13. The respondent submits that the possession of the suit property was interrupted as there was a case filed challenging the circumstances under which the suit property was transferred to the applicant among other persons with interest in the suit property. In that regard, the 2nd respondent has placed reliance on the case of Titus Kamau vs. Attorney General & 2 others (2018) e KLR where it was held: -
“The filing of a suit or legal proceedings by the registered owner or his representative seeking to recover possession, interrupts the running of time for adverse possession.”
14. The 2nd respondent further submits that the applicant’s claim for adverse possession is unmaintainable because it stems from alleged sale of the suit property by the then registered proprietor of the suit property, Thomas Kimaiyo Cherop, and not hostile adverse claim against the true owner. In that regard, the 2nd respondent relies on the decision in the case of Gabriel Mbui vs. Mukindia Maranya (1993)e KLR where Kuloba J, as he then was stated/held:-
“…Any kind of permissive use, as by a tenant, licensee contract purchaser in possession, or easement holder, is rightful and not hostile. Any time an adverse possessor and owner have discussed the adverse possession, permissive agreement may have occurred and that destroys adverse possession”.
15. Maintaining that the applicant’s claim for adverse possession is unmaintainable on account of the above reasons, the 2nd respondent urges this court to upheld the preliminary objection, dismiss the originating summons with costs to him.
Applicant’s submissions
16. In his submissions filed on 23rd September, 2025 the applicant has identified three issues for the court’s determination. These are: -
i. Whether the notice of preliminary objection dated 22nd July 2025 is merited;
ii. Whether the plaintiff’s suit offends section 9(2) of the Limitation of Actions Act; and
iii. Who should bear the costs?
17. On Whether the notice of preliminary objection dated 22nd July 2025 is merited, the plaintiff submits that the preliminary objection is not merited because under section 9(2) of LAA, the course of action accrues from the date of death of the deceased; that the plaintiff applicant had been in possession of the suit property from 2012 which is more than 12 years. The plaintiff acknowledges that pursuant to the orders issued in the Eldoret succession court (supra), the suit property reverted to the Estate of Soniako Kiprop but contends that the reversion of the suit property to the estate of the deceased did not interrupt his possession of the suit property or stop time from running in his favour. In that regard, the plaintiff places reliance on the case of Githu v Ndeete 1984 klr 776 1986 where it was held that mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession.
18. The plaintiff further submits that the issue as to whether he has become entitled to 9.8 acres comprised in the suit property on account of having been in adverse possession thereof, is an issue that can only be dealt with in the main suit and not on a preliminary objection.
19. Regarding his application for interlocutory reliefs, the applicant submits that he has made up a case for being granted the orders sought as he has demonstrated that he is the one in use and occupation of the suit property.
20. On costs, the plaintiff submits that under section 27(1) of the Civil Procedure Act, costs follow the event, meaning the successful party is entitled to costs unless there are compelling reasons for the court to decide otherwise.
21. Maintaining that he has made up a case for being granted the orders sought, the plaintiff urges the court to dismiss the suit with costs to him.
Analysis and determination
22. I have read and considered the preliminary objection raised by the 2nd respondent and the submissions filed by the parties in respect thereof.
23. The sole issue arising from the preliminary objection and the submissions by the parties to the suit is whether the 2nd respondent has made up a case for striking of the applicant’s case. In that regard, it is common ground that the applicant took possession of the suit property, which property has since been reverted by the court to the Estate Saniako Kiprop, in 2012.
24. The order of the court reverting the suit property to the Estate of the Saniako Kiprop has a bearing on the possession of the suit property by the applicant. This is so because by dint of the provisions of Section 45 of the Law of Succession Act, Cap 160 Laws of Kenya, the taking of possession of the suit property which forms part of the Estate of a deceased person, Saniako Kiprop, amounted to intermeddling with the Estate of a deceased person, which is not only unlawful but also a criminal offence.
25. The applicant cannot found his action on possession deemed by law to be unlawful.
26. In view of the foregoing, I agree with the 2nd respondent’s submissions that the applicant’s claim is unmaintainable against the Estate of Saniako Kiprop, deceased, which Estate had not been administered at the time the applicant purportedly took possession of it.
27. The upshot of the foregoing is that the preliminary objection taken by the 2nd respondent is merited. Consequently, I uphold it and dismiss the applicant’s suit/originating summons dated 23rd July 2024 and amended on 30th January 2025 with costs to the 2nd respondent.
28. Orders accordingly.
Dated, signed and delivered this 3rd day of November, 2025.
Ruling delivered Virtually in the presence of:
Mr Kipngetich h/b for Mr Maritim for the Applicant.
N/A for the 1st Respondent
Mr Tarigo for the 2ndRespondent.
Christine: Court Assistant
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