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ELCDismissedOriginating Summons dated 28.10.2025· [2026] KEELC 1873 (KLR)

Kiriinya v Kathiga (Sued as the Administratix of the Estate of M’tuerandu M’ithiuru – Deceased) (Enviromental and Land Originating Summons E034 of 2025) [2026] KEELC 1873 (KLR)

Environment and Land Court
16 March 2026
5,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed a buyer's adverse possession claim because he bought land from someone who had no legal right to sell a deceased person's estate.

What this practically means

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Executive summary

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This was an originating summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, in which the plaintiff, Jackson Gituma Kiriinya, sought a declaration of adverse possession over ½ acre of parcel Abothuguchi/Gaitu/1143, an order for his registration as proprietor, and an order compelling the defendant to execute transfer instruments. His claim rested on a 2011 sale agreement with one Jotham Mwirigi, who allowed him into possession, with the balance of the purchase price payable on transfer. The defendant, Ruth Kiunga, administrator of the estate of the registered owner M'Ituerandu M'Ithiuru (deceased), opposed the claim, contending that the vendor had no capacity, the sale amounted to illegal intermeddling contrary to Section 45 of the Law of Succession Act, and that the ingredients of adverse possession were not established. In viva voce evidence, the plaintiff conceded that the estate had not been succeeded when he bought and that the grant of letters of administration issued to the defendant only in September 2025. The court framed two issues: whether adverse possession was established and what relief should issue. It held that where a claim is founded on a sale agreement, time runs only from payment of the last instalment or repudiation of the contract; neither was proved, so occupation never became hostile. The sale was further an illegal intermeddling, and applying the ex turpi causa principle, the plaintiff could not benefit from it. The suit was dismissed with costs to the defendant, and, invoking Section 13(7) of the Environment and Land Court Act, the plaintiff was ordered to vacate and hand over vacant possession within 90 days, failing which an eviction order would issue.

Key legal issues

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01

Whether the Plaintiff established the elements of adverse possession

Holding

No. Time never began to run because the final instalment of the purchase price was never paid and the contract was never repudiated; in any event the sale was illegal as intermeddling

Reasoning

The plaintiff's claim rested on a sale agreement dated 11.10.2011 under which the balance of the purchase price was payable on transfer. No transfer occurred, so the balance was never paid; occupation therefore remained permissive under the contract. The plaintiff also tendered no evidence of repudiation of the contract. Further, the vendor Jotham Mwirigi had no grant of letters of administration when he sold, so the sale was an illegal intermeddling with the estate of the deceased contrary to Section 45 of the Law of Succession Act, disentitling the plaintiff from pleading adverse possession.

p. 7
02

Whether a plaintiff who entered the property under an illegal contract ought to remain in occupation

Holding

No. The illegality vitiates the claim and the court exercised its jurisdiction under Section 13(7) of the Environment and Land Court Act to order eviction notwithstanding the absence of a counterclaim

Reasoning

Applying the ex turpi causa principle as stated in Mapis Investment (K) Limited v Kenya Railways Corporation, the court held that no party may benefit from an illegal or criminal act, and a court must avert illegality once brought to its attention. The failure of the defendant to file a counterclaim did not sanitize the illegality. Relying also on the court's inherent and residual jurisdiction as elucidated in Narok County Government v Ntutu, the court found a basis to issue an order of eviction.

p. 10
03

What relief, if any, ought to issue

Holding

Dismissal of the suit, costs to the defendant, and an order that the plaintiff vacate within 90 days with an eviction order to issue on default

Reasoning

Having found that the plaintiff failed to prove hostility of occupation and that his entry was founded on an illegal contract, the declarations and registration orders sought could not issue. The court nonetheless invoked Section 13(7) of the Environment and Land Court Act to order vacation and vacant possession, giving the plaintiff 90 days, with liberty to evict on default.

p. 11

Legal principles established

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  • Where a claim for adverse possession is predicated on a sale/purchase agreement, time only begins to run upon payment of the last instalment of the purchase price or upon repudiation of the contract
  • A purchaser in occupation who has not concluded payment of the purchase price cannot invoke adverse possession, as his occupation is founded on contract or permission
  • A sale of a deceased person's property before issuance of a grant of representation is illegal and void as intermeddling, and a claimant cannot benefit from such an illegal transaction
  • A court ought not to enforce an illegal contract where the illegality is brought to its notice and the person invoking its aid is implicated in the illegality

Court orders

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  1. 1.The Plaintiff's suit be and is hereby dismissed
  2. 2.Costs of the suit be and are hereby awarded to the Defendant
  3. 3.The costs shall be agreed upon and in default be taxed in the conventional manner
  4. 4.The Plaintiff be and is hereby ordered to vacate and hand over vacant possession of the suit property to the Defendant within 90 days from the date hereof
  5. 5.In the event of default, the Defendant shall be at liberty to evict the Plaintiff either by himself, agents or servants, and an eviction order shall issue

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A, 1B, 3A
  • Limitation of Actions Act, Chapter 22 Laws of KenyaSection 7
  • Law of Succession Act, Chapter 160 Laws of KenyaSection 45
  • Environment and Land Court Act, 2011Section 13(7)

Cases cited (19)

  • Leonola Nerima Karani versus William Wanyama Ndege
    [2012] eKLR
  • Mwangi Githuu versus Livingstone Ndeete
    [1980] eKLR
  • Samuel Miki Waweru versus Jane Njeri Richu
    [2007] eKRL
  • Mbugua Njuguna versus Elijah Mburu Wanyoike and another
    [2004] eKLR
  • Odera versus Were
    [2025] KECA 1284 (KLR)
  • Kimotho versus Mushomba
    [2025] KEELC 938
  • Njoki versus Pussy
    [2023] KEELC 945
  • Cherere versus Wandarwa and another
    [2024] KEELC 5445
  • Andafu Versus Akhulunya
    [2025] KECA 714
  • Ouko & another (Suing as the Personal Representatives and Administrators of the Estate of Jason Atinda Ouko (Deceased)) v Kageni (Sued as the Personal Representative and Administrator of the Estate of Samuel Muhika Kageni (Deceased)
    [2025] KECA 2126 (KLR)
  • Sisto Wambugu vs. Kamau Njuguna
    [1983] KECA 69 (KLR)
  • Hosea vs. Njiru & Others
    [1974] EA 526
  • Bridges vs. Mees
    [1957] 2 All ER 577
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] KECA 942 (KLR)
  • Mapis Investment (K) Limited v Kenya Railways Corporation
    [2006] KECA 344 (KLR)
  • Mistry Amar Singh v. Serwano Wofunira Kulubya
    1963 EA 408
  • Scott v. Brown, Doering, McNab & Co
    [1892] 2 QB 724
  • Narok County Government v Ntutu & 2 others (Petition 3 of 2015)
    [2018] KESC 11 (KLR)
  • Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited
    [2014] eKLR
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Section 38 of the Limitation of Actions Act (Cap 22); Section 13(7) of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiriinya v Kathiga (Sued as the Administratix of the Estate of M’tuerandu M’ithiuru – Deceased) (Enviromental and Land Originating Summons E034 of 2025) [2026] KEELC 1873 (KLR)", Case Analysis (2026). Originating Summons dated 28.10.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1873/eng@2026-03-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.