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) (Civil Appeal 382 of 2019) [2025] KECA 2126 (KLR)

The capacity issue was not raised in the pleadings or in the agreed list of issues but emerged only in cross-examination, so it came too late. Order 1 Rule 9 provides that no suit shall be defeated by misjoinder or non-joinder of parties, and Order 31 rules 1 and 2 require all administrators to be made parties in suits against an estate, not suits by the estate. Following Zeinab Khalifa Khator, joint administrators are not prohibited from seeking different orders; what is prohibited is dealing with estate assets singularly. The fruits of the litigation go to the estate.

As a first appeal, the Court's role under rule 31(1)(a) of the Court of Appeal Rules, 2022 is to re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial court's conclusions should stand. The Court summarized the pleadings and testimony of the four witnesses before reaching its independent determination on capacity, payment, and adverse possession.

Construing clauses 3 and 9 strictly, the contract would have become null and void by 28th February 1977, yet neither the vendor nor, by 1996, the estate repudiated it or refunded monies. The parties accommodated each other: the vendor's advocate Kagwe facilitated collection of balances, and the respondent attended a purchasers' meeting in the vendor's presence in 1995. The parties' conduct showed an intention that the deal go through notwithstanding the challenges.

The respondent produced copies of cheques written in favour of Kagwe & Co. Advocates, the vendor's advocate charged with collecting balances, and an affidavit by Mr. Kagwe confirming the respondent was listed as a purchaser. Minutes of a 1995 meeting attended by the vendor confirmed payment through advocates. Had the appellants disputed payment, they could have adduced evidence that the cheques did not reflect on the vendor's or his advocates' accounts; they did not. The balance of probability tilted in the respondent's favour.

Following Sisto Wambugu and Public Trustee v Wanduru Ndegwa, where adverse possession is premised on a purchase agreement, the purchaser's possession becomes adverse on payment of the last instalment. Possession need not be actual and physical but may be constructive: the respondent controlled the land through her employee PW3, who tended structures and trees. The claim was not statute-barred because section 38 prescribes no time for instituting such claims.

The trial court's own findings were contradictory: it found the vendor gave the deceased possession of 5 acres, yet awarded only 2.5 acres on the basis that the claim was so limited. No evidence showed the occupied area was ever reduced. Disregarding the inelegance of the pleadings, the claim covered the entire parcel occupied, so the cross-appeal was allowed and the award increased to 5 acres.

The trial Judge suo motu addressed specific performance, never pleaded or sought by the respondent, and ignored the constructive trust declaration that was pleaded. The Odd Jobs v Mubia exception did not apply because the respondent's counsel never addressed specific performance. Although this was a reversible error, neither the appeal nor the cross-appeal raised it, so the Court merely commented and left the matter there.