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ELCDismissedMalindi CMCC No. 169 of 2009 (Appeal dated 17th April 2013)· [2013] KEELC 106 (KLR)

Kenga Kashuru v Solomon Magana Kamiti [2013] KEELC 106 (KLR)

High Court of Kenya (first appellate court)
26 July 2013
3,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the High Court at Malindi from the judgment of Chief Magistrate Lucy Gitari delivered on 13th April 2011 in Malindi CMCC No. 169 of 2009. The Respondent, as administrator of the estate of his late son David Gikonyo Kamiti, had sued claiming ownership of plot 10719/120 Malindi and damages for trespass, alleging that the Appellant wrongfully entered the plot in August 2008, demolished a semi-permanent structure and uprooted the fence. The Appellant denied the claim, asserting he was an original squatter allocated the plot by Maisha Mapya Self Help Group in 1995. The magistrate found that the deceased had lawfully bought the plot from Kaingu Kombe, chairman of the group, and awarded Kshs.100,000 general damages for trespass. On appeal, the Appellant argued that the plaintiff failed to prove the property formed part of the deceased's estate, that the plot number on the certificate of confirmation did not match the pleaded plot, and that the Self Help Group should have been joined. Angote J rejected each ground. The mismatch in plot numbers was held to be a typographical error, and in any event an administrator may recover after-discovered assets of a deceased. Non-joinder of the group did not defeat the suit under Order 1 Rule 9, and the vendor was Kaingu Kombe personally. The Appellant's receipts bore no plot number, and his own evidence contradicted his claim of occupation since 1999. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the suit property formed part of the deceased's estate despite the plot number on the Certificate of Confirmation appearing as 719/120 instead of 10719/120

Holding

The discrepancy was a typographical error; the certificate listed the suit property among the deceased's assets

Reasoning

The court compared the pleaded plot number (10719/120) with the number on the certificate (719/120). No evidence was led to show these were different plots on the ground. The court concluded the omission of the first two digits was typographical. It went further to hold that even absent inclusion in the confirmation, an administrator may still sue to recover after-discovered assets.

p. 3
02

Whether the deceased purchased the suit plot from Kaingu Kombe or the Appellant was allocated it first

Holding

The deceased bought the plot from Kaingu Kombe; the Appellant's receipts did not identify the suit plot and he already owned the neighbouring plot

Reasoning

The receipts produced by the Appellant bore no plot number, and evidence showed he owned plot 10719/119 and paid PW2 to vacate the disputed plot he claimed to occupy since 1999. The undated sale agreement and payment annexures showed Kaingu Kombe acquired his interest in 1999 and sold plot 101 to the deceased, who fenced it and built a structure.

p. 5
03

Whether non-joinder of Maisha Mapya Self Help Group defeated the suit

Holding

No - under Order 1 Rule 9 non-joinder does not defeat a suit, and the vendor was Kaingu Kombe, not the group

Reasoning

The court applied Order 1 Rule 9 of the Civil Procedure Rules, permitting the court to determine the controversy as between the parties actually before it. Further, since the deceased purchased the plot from Kaingu Kombe personally rather than from the Self Help Group, the group was not a necessary party.

p. 5
04

Whether the award of Kshs.100,000 general damages for trespass was warranted

Holding

Yes - trespass and destruction of the structure and fence were proved

Reasoning

The evidence of PW1 and PW2 established that the deceased fenced the plot and built a structure during his lifetime, and that the Appellant invaded, uprooted the fence and demolished the structure after the deceased's death. The magistrate's finding of trespass and the damages award were upheld as correct.

p. 5

Legal principles established

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  • An administrator may sue to recover a deceased person's property even if it was not listed in the Certificate of Confirmation of Grant, provided he holds letters of administration
  • A discrepancy in a plot number in a certificate of confirmation, absent evidence of difference on the ground, may be treated as a typographical error
  • A suit cannot be defeated by non-joinder of a party; the court may determine the matter as regards the parties actually before it

Court orders

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  1. 1.The Appellant's Appeal dated 17th April 2013 is dismissed
  2. 2.Costs of the appeal to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 9
On appeal from
Chief Magistrate's Court, Malindi
CMCC No. 169 of 2009
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court judgment (Appeal from the Judgment of the Chief Magistrate Honourable Lucy Gitari delivered on 13th April, 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, "Kenga Kashuru v Solomon Magana Kamiti [2013] KEELC 106 (KLR)", Case Analysis (2013). Malindi CMCC No. 169 of 2009 (Appeal dated 17th April 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/106/eng@2013-07-26

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