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ELCDismissedNot stated in the judgment (Suit by plaintiffs concerning L.R No. 9381, Nyahururu)· [2016] KEELC 1193 (KLR)

Kimungeny Arap Ruto & 87 others v Lucy Mumbua Mulili & 16 others [2016] KEELC 1193 (KLR)

Environment and Land Court
20 January 2016
MSMUNYAO SILA
1,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land claim because the paperwork authorized to file it carried signatures of people who were already dead.

What this practically means

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Executive summary

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The plaintiffs, purporting to be 72 in number, filed suit claiming to be the registered/allotted owners of L.R No. 9381 in Nyahururu, seeking a declaration of ownership and a permanent injunction against the defendants. Together with the plaint they filed an application dated 3rd July 2014 for an injunction pending hearing, supported by an affidavit of Alfred Ndiritu Kingori, the 2nd plaintiff, asserting the plaintiffs had occupied the land as Maina Squatters for over 50 years. The State Law Office, appearing for the 1st, 2nd, 6th, 7th, 9th and 10th defendants, filed a defence, replying affidavits and a preliminary objection. The 2nd defendant, Chief of Maina Location, deposed that the squatters were settled between 2009 and 2012 after vetting, pointed out irregularities including a person named as both plaintiff and defendant, and produced certificates of death showing that several named plaintiffs - including plaintiff No. 46, who was said to be sued together with her own son - died long before the suit was filed. Some named plaintiffs wrote letters disowning the suit. The court found that the written authority annexed to the verifying affidavit purported to bear signatures of deceased persons and was therefore fraudulent, and that the 2nd plaintiff filed nothing to refute this. Holding the suit to be founded on a fraudulent verifying affidavit and fraudulent authority and thus an abuse of court process, the court dismissed the suit with costs to be borne personally by Alfred Ndiritu Kingori. The injunction application fell away automatically, and the court found it unnecessary to determine the remaining preliminary objection grounds.

Key legal issues

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01

Whether the written authority and verifying affidavit were valid

Holding

The purported written authority was fraudulent because it was allegedly signed by plaintiffs who had died before the suit was instituted; the 2nd plaintiff who swore the verifying affidavit did not refute the death certificates and disclaiming letters

Reasoning

The court examined certificates of death for plaintiffs 43, 69, 54 and a burial permit for plaintiff 52, showing deaths before the 2014 suit. Letters from named plaintiffs 12, 62 and 71 disclaimed sanctioning the suit. The 2nd plaintiff, who swore he had authority of all plaintiffs, filed no affidavit to refute this evidence. The authority could not have been signed by the deceased, rendering it and the verifying affidavit fraudulent, justifying dismissal.

p. 3
02

Whether the remaining grounds of the preliminary objection needed determination

Holding

Having found the suit an abuse of process on the authority issue, the court found it unnecessary to address the other preliminary objection grounds

Reasoning

Once the suit was dismissed for fraudulent authority and verifying affidavit, the remaining complaints (Public Authorities Limitations Act, Government Proceedings Act consent) were rendered academic. The court declined to engage with them, and the injunction application fell automatically with the dismissal.

p. 3

Legal principles established

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  • A suit supported by a fraudulent verifying affidavit and fraudulent written authority is an abuse of the process of court and merits dismissal with costs
  • Where there are several plaintiffs, one of them may swear the verifying affidavit on behalf of the others only with written authority filed with the verifying affidavit (Order 4 Rules 2 and 3)

Court orders

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  1. 1.The suit is dismissed with costs
  2. 2.Costs to be shouldered by Alfred Ndiritu Kingori, the 2nd plaintiff who swore the fraudulent verifying affidavit
  3. 3.The application for injunction falls by the wayside following dismissal of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 2
  • Civil Procedure RulesOrder 4 Rule 3
  • Public Authorities Limitations ActSection 3
  • Government Proceedings ActSection 12 as read with Sections 13A and 16
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (no specific constitutional/statutory provision invoked for jurisdiction)

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, "Kimungeny Arap Ruto & 87 others v Lucy Mumbua Mulili & 16 others [2016] KEELC 1193 (KLR)", Case Analysis (2016). Not stated in the judgment (Suit by plaintiffs concerning L.R No. 9381, Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1193/eng@2016-01-20

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