Ngugi v Nayer (Being Sued as Executor of the Estate of Trilok Singh Nayer); Sann Limited (Defendant) (Enviromental and Land Originating Summons E026 of 2023) [2026] KEELC 2211 (KLR)
The bottom line
#A Kenyan landowner's adverse possession claim survived an attempt to strike it out, but the case is paused until an earlier rent dispute over the same property is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the amended originating summons discloses no reasonable cause of action and is frivolous, vexatious or an abuse of process and should be struck out
- 2.Whether in the alternative the suit should be transferred and consolidated with Milimani CMELC No. E793 of 2023 - SANN Limited v John Ngunjiri Ngugi & Others
Key legal issues
#Whether the originating summons should be struck out for disclosing no reasonable cause of action
The application to strike out was refused; whether the plaintiff has acquired title by adverse possession is a matter for trial
The court held that the originating summons was not an abuse of process. The applicant relied heavily on affidavit evidence on adverse possession, but such factual questions can only be ventilated at trial. Striking out on that ground alone would be unfair and unjust, following the caution in Kivanga Estates and D.T. Dobie against exercising the drastic strike-out jurisdiction without a full hearing.
Whether the suit is res sub judice under Section 6 of the Civil Procedure Act given the pending suit CMELC No. E793 of 2023
The instant suit was found sub judice; instead of striking out, the proceedings were stayed pending determination of the earlier suit
Applying Section 6 of the Civil Procedure Act and the Supreme Court's articulation of the sub-judice rule, the court found that the earlier magistrates' suit between the same parties concerns the same suit property. Although the orders sought differ, both suits relate to the same property, so the later suit must await the outcome of the earlier one. The court considered staying proceedings the just remedy rather than striking out.
Legal principles established
#- The jurisdiction to strike out pleadings is drastic and a last resort; a litigant should not be deprived of a full trial lightly
- On a strike-out application the court must not embark on the merits of the case
- Where a later suit is sub judice, the later-filed suit should be stayed pending determination of the earlier suit
Court orders
#- 1.The notice of motion dated 17th October 2025 is found to have no merit
- 2.The proceedings in this suit are stayed pending final determination of CMELC No. E793 of 2023 before the magistrates' court
- 3.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; application brought under Order 2 Rule 15(1)(a) and (d), Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Striking out of the plaintiff's amended originating summons
Adverse possession is a question of fact best determined at trial; striking out would be unfair and unjust to the plaintiff
Transfer and consolidation of Milimani CMELC No. E793 of 2023 with this suit
No solid arguments were advanced on consolidation; instead the suit was found sub judice and proceedings stayed
Costs of the application and the entire suit awarded to the defendants
Court directed each party to bear its own costs
Costs
Each party to bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.
Instead, and bearing in mind the existence of CMELC No. E793 of 2023 before the magistrates court, the proceedings in this suit are hereby stayed pending final determination of CMELC No. E793 of 2023. Each party to bear its own costs.
Issues in the judgment
#Judgment contains typographical errors rendering some words garbled (e.g. 'ofiend' for 'offend', 'plaintifi' for 'plaintiff', ' confiicting' for 'conflicting'), and the header inconsistently describes the filing as an 'originating summons' while the application seeks to strike out 'pleadings'
The court found the suit sub judice and stayed the proceedings, yet also stated the application had no merit, which sits uneasily with the applicant's alternative prayer for consolidation rather than a stay
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngugi v Nayer (Being Sued as Executor of the Estate of Trilok Singh Nayer); Sann Limited (Defendant) (Enviromental and Land Originating Summons E026 of 2023) [2026] KEELC 2211 (KLR)", Case Analysis (2026). Not stated in the judgment (plaintiff's amended originating summons dated 16th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2211/eng@2026-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.