Joseph Omollo Odam & Richard Omolo & another (suing as the Administrator of the Estate of Konel Odam Omollo (Deceased) v Jill Awino Odingo & 11 others [2017] KEELC 750 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a land claim, ruling that buyers of subdivided land can still be sued over disputes tied to the original parcel.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaint discloses a cause of action against the 6th Defendant
The court found a cause of action was established and the suit should proceed to full hearing
The 6th Defendant acquired one of the parcels (Kisumu/Konya/3482) subdivided from the original parcel 817 and contended, under Section 39(1) of the repealed Registered Land Act, that he was a bona fide purchaser for value without duty to inquire. The court held that the pleadings, particularly paragraphs 14 to 27 of the plaint, disclosed a cause of action against him as a recipient of subdivided land, and that it was fair and just the suit be decided on merit rather than struck out.
Capacity of the 1st and 2nd Plaintiffs to sue
Both Plaintiffs had capacity; the objection to the 2nd Plaintiff's capacity had no merit
The 1st Plaintiff sued as administrator of his late father's estate with a Grant Ad Litem issued in Kisumu H.C. Probate and Administration Cause No.185 of 2015, and his capacity was not contested. The 2nd Plaintiff sued in his own name, with paragraph 27 of the plaint grounding his claim on adverse possession of 2.5 acres. The 6th Defendant's objection was not based on the pleadings and therefore failed.
Legal principles established
#- A plaintiff claiming adverse possession may sue in his own name even where the basis of the objection to his capacity is not founded on the pleadings
- A transferee of a portion of subdivided land carved out of the original parcel is a proper party against whom a cause of action is disclosed
Court orders
#- 1.The notice of motion dated 2nd May 2017 by the 6th Defendant seeking to strike out the plaint is dismissed with costs
- Jurisdiction invoked
- Environment and Land Court Act, Article 162(2) of the Constitution (land and environment jurisdiction) - the judgment does not expressly state the provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Omollo Odam & Richard Omolo & another (suing as the Administrator of the Estate of Konel Odam Omollo (Deceased) v Jill Awino Odingo & 11 others [2017] KEELC 750 (KLR)", Case Analysis (2017). Kisumu ELC Case ( plaint dated 20th June 2015, filed 29th June 2015 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/750/eng@2017-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.