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ELCDismissedKerugoya ELCC No. 251 of 1991 (Originating Summons)· [2017] KEELC 48 (KLR)

Gathoni Wahome v Kabuchi Rwario & 3 others [2017] KEELC 48 (KLR)

Environment and Land Court
29 May 2017
LWL N Waithaka
4,939 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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A landowner who sued for ownership lost everything because she sued the wrong people and failed to replace a deceased defendant in time.

What this practically means

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Executive summary

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This was an adverse possession claim over land parcel Kiine/Kiangai/640 (later sub-divided into Kiine/Kiangai/1643 and thereafter 2345 and 2346), filed by originating summons on 26th July 1991. The plaintiff asserted that in 1965 her late husband bought the parcel from the 1st defendant for Kshs. 1,350/-, took possession, developed it, and was buried thereon in 1971 without objection; she claimed title by adverse possession and that the 2nd defendant, in whose name the land stood, held it in trust for her. During the suit the 2nd defendant sub-divided and sold portions, and further transferred the claimed parcel to the 3rd and 4th defendants, who pleaded innocent purchaser status. The 2nd defendant died on 29th March 2009 and was never substituted. The court framed three issues: the effect of that death, whether the plaintiff proved her claim, and the orders to make. Relying on Order 24 Rule 4(3) and the M'Mboroki M'arangacha authority, the court held the suit against the 2nd defendant abated automatically, rendering it non-existent against him. Since an adverse possession claim lies only against a registered proprietor, it could not be sustained against the remaining defendants. The court observed the land must have been registered in someone other than the unborn 2nd defendant, but the plaintiff could not raise that unpleaded case under Order 2 Rule 6, and no orders could issue against the 1st defendant, despite his being the main actor, absent a pleaded claim on his representation. The suit was dismissed, with each party bearing their own costs in the special circumstances of the case.

Key legal issues

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01

Effect of the 2nd defendant's death without substitution

Holding

The suit against the 2nd defendant abated automatically under Order 24 Rule 4(3) of the Civil Procedure Rules, rendering it non-existent against him

Reasoning

Order 24 Rule 4(3) provides that where no application is made within one year to join the legal representative of a deceased defendant, the suit abates against that defendant. Following M'Mboroki M'arangacha, abatement is automatic and needs no court order. The 2nd defendant died on 29th March 2009 and was never substituted, so the suit against him abated as dead as a dodo.

p. 9
02

Whether adverse possession could be established against the remaining defendants

Holding

No, because the remaining defendants are not registered proprietors of the suit property

Reasoning

A claim for adverse possession runs against the registered proprietor whose title is extinguished by limitation. The 3rd and 4th defendants, though claiming interests during the pendency of the suit, are not registered proprietors of the parcel the plaintiff claims, and the court was unable to determine the plaintiff's claim against the 3rd defendant's interest owing to the abatement.

p. 9
03

Registration of the suit property in the name of an unborn person

Holding

The court was inclined to find the property must have been registered in a person other than the 2nd defendant, but the plaintiff could not urge that unpleaded case

Reasoning

The green card showed registration in Kanja Kabuchu's name on 10th April 1963, yet the 2nd defendant was born on 9th January 1967. The court agreed the property must have been registered in another person, but since the plaintiff neither pleaded nor pursued such a case against that person, Order 2 Rule 6 barred the claim. It also prevented orders against the 1st defendant, the main actor, for want of a pleaded claim based on his representation of authority.

p. 9

Legal principles established

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  • Abatement of a suit against a deceased defendant without substitution within one year is automatic and renders the suit non-existent against that defendant
  • A claim for adverse possession can only be urged against a registered proprietor of the land claimed
  • Parties are bound by their pleadings and may not raise new grounds of claim inconsistent with previous pleadings

Court orders

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  1. 1.The plaintiff's claim is found to be unsustainable as against all the defendants
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 4
  • Civil Procedure RulesOrder 24 Rule 7(2)
  • Civil Procedure RulesOrder 2 Rule 6
  • Land Registration ActSection 113

Cases cited (5)

  • Peter Thuo Kairu v. Kuria Gacheru
    (1988) 2 KAR
  • Githu v. Ndeete
    (1984) KLR 776
  • Kasuve v. Mwaani Investment Limited & 4 others
    (2004) 1 KLR
  • Kenya Farmers Cooperative Union v. Charles Murgor (deceased) T/A Kaptabei Coffee Estate
    2005 eKLR
  • M'Mboroki M'arangacha Vs Land Adjudication Officer Nyambene & 2 others
    [2005] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act in a claim for adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gathoni Wahome v Kabuchi Rwario & 3 others [2017] KEELC 48 (KLR)", Case Analysis (2017). Kerugoya ELCC No. 251 of 1991 (Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/48/eng@2017-05-29

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