Onduto v Ojuki & 6 others (Environment and Land Case E054 of 2025) [2026] KEELC 4161 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an adverse possession claim because it was filed against a deceased owner's children who had no legal authority to answer for his estate.
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 preliminary objection is a pure point of law or depends on contested facts requiring evidence
- 2.Whether the Respondents, being children of the deceased registered owner but neither registered proprietors nor appointed personal representatives, have capacity to be sued in a claim for adverse possession
- 3.Whether the suit founded on the Originating Summons is misconceived and incompetent and should be struck out
Key legal issues
#Whether a preliminary objection resting on capacity can be sustained without ascertaining contested facts
Yes - the facts here (registration of the land in the name of the deceased and his death) were undisputed, pleaded and admitted, so the objection was a pure point of law
The court verified from the official search and death certificate that the land was registered in the name of Alois Ojuki Opiyo, who died on 21st December 2006. These facts were pleaded in the Originating Summons and admitted in the Replying Affidavit, leaving no factual controversy for ascertainment by evidence, so the Mukisa Biscuits threshold was met.
Whether children of a deceased registered proprietor can be sued in an adverse possession claim without a grant of letters of administration
They cannot; capacity to be sued for the estate vests only in a personal representative appointed under the Law of Succession Act
Relying on sections 2, 79 and 82 of the Law of Succession Act and section 38 of the Limitation of Actions Act, the court held that adverse possession lies only against the registered owner or the estate's personal representatives. The defendants, as mere children of the deceased with no grant, lack such capacity, and amendment cannot cure it.
Whether capacity is a technicality excusable under Article 159(2)(d) of the Constitution
No - capacity is a substantive question touching the right to a fair hearing, not a procedural technicality
The plaintiff argued Article 159(2)(d) required justice without undue regard to technicalities. The court rejected this, holding that capacity to sue or be sued goes to substance and fair hearing rights, and that a suit against persons without capacity is misconceived and incompetent notwithstanding the merits of the adverse possession claim.
Legal principles established
#- Under section 38 of the Limitation of Actions Act, a claim of adverse possession can only be brought against the registered owner or the personal representatives of his/her estate
- The children of a deceased registered owner, absent a grant of letters of administration, lack capacity to be sued on behalf of the estate; the question of capacity is substantive, not technical
- Only a personal representative duly appointed under the Law of Succession Act has capacity to deal with the property of a deceased person
Court orders
#- 1.The suit commenced vide the Originating Summons dated 27th May 2025 is struck out
- 2.Costs awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 63(e), 3A, 1A and 1B of the Civil Procedure Act and Order 51(1), Order 40 Rules 1–3 of the Civil Procedure Rules (application jurisdiction); preliminary objection on capacity under section 38 of the Limitation of Actions Act
Relief refused
#The applicant's claim for adverse possession (and the injunctive relief sought in the Notice of Motion) proceeds no further as the suit is struck out
The Respondents lack capacity to be sued, being neither the registered owners nor personal representatives of the deceased registered owner
Costs
Costs are awarded to the Respondents.
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.
Under section 38 of the Limitation of Actions Act, a claim of adverse possession can only be brought against the registered owner or the personal representatives of his/her estate.
The question of the capacity of a party to sue or be sued is not a question of technicality as submitted on behalf of the plaintifi, but a substantive question, touching on the right to a fair hearing.
No amount of amendment to the pleadings can give the Respondents, who are neither the registered owners of the suit land nor personal representatives of the said registered owner, the capacity to sue or be sued.
The suit against them commenced vide the Originating Summons dated 27th May 2026 is therefore misconceived and incompetent. The suit is hereby struck out. Costs are awarded to the Respondents. Orders accordingly.
Issues in the judgment
#Date inconsistencies: Originating Summons is dated 27th May 2025 in paragraph 1 but referred to as dated 27th May 2026 in the dispositive paragraph 25
Replying Affidavit sworn 13th February 2026 postdates the application's dismissal/reinstatement on 23rd October 2025; chronology internally consistent but the affidavit date and prior event dates sit close together and role labels alternate between Defendants/Respondents/Plaintiff/Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onduto v Ojuki & 6 others (Environment and Land Case E054 of 2025) [2026] KEELC 4161 (KLR)", Case Analysis (2026). Originating Summons dated 27th May, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4161/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.