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ELCOther· [2017] KEELC 868 (KLR)

Marion Kaari Mbui v Elisha Mbogo Nthiga [2017] KEELC 868 (KLR)

Environment and Land Court
16 November 2017
1,324 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can decide adverse possession claims even where land was previously handled in a succession case.

What this practically means

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Executive summary

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This is a ruling on preliminary objections in an adverse possession suit brought by originating summons under section 38 of the Limitation of Actions Act (Cap 22). The Plaintiff claimed to have been in open, continuous and exclusive occupation of land parcel Ngandori/Kiriari/453, later sub-divided into parcels 4236, 4237 and 4238, for over fifty years, and sought a declaration that she had acquired title by adverse possession and that the Defendant's title stood extinguished. The Defendant raised four preliminary objections: that the court lacked jurisdiction because the matter emanated from a 1969 succession cause that was never revoked or challenged; that the matter had already been determined; that the suit disclosed no cause of action and was an abuse of process; and that the court could not deal with a matter previously handled by the succession court. Applying the Mukisa Biscuits definition of a preliminary objection, the court held that the objections were not sustainable. It found that adverse possession was not directly and substantially in issue in the succession proceedings, noting that the Defendant was not yet registered as proprietor when those proceedings were filed in 1969, and that failure to challenge the succession court's decision was irrelevant to an adverse possession claim. The court affirmed its jurisdiction under Article 162(2)(b) of the Constitution and section 13(2) of the Environment and Land Court Act, and held that the allegation of lack of open, continuous and exclusive possession was a factual defence for trial, not a point of law. The preliminary objections were dismissed with costs to the Plaintiff, and a hearing date for the substantive suit was to be fixed.

Key legal issues

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01

Whether the Environment and Land Court lacks jurisdiction because the matter emanated from a succession cause

Holding

The objection fails; the ELC has jurisdiction over adverse possession claims under Article 162(2)(b) of the Constitution and section 13(2) of the ELC Act.

Reasoning

The court held that the succession court dealt with inheritance matters under the Law of Succession Act, but a claim under section 38 of the Limitation of Actions Act was never an issue directly and substantially in issue in those proceedings. Adverse possession affects title to land, a matter within the ELC's mandate. The Plaintiff's suit is an independent claim, not an appeal from the succession cause.

p. 3
02

Whether res judicata bars the suit given the 1969 succession proceedings

Holding

Res judicata does not apply; the adverse possession claim was not determined in the succession cause, and at the time of those proceedings the Defendant was not even the registered proprietor.

Reasoning

The court reasoned that res judicata under section 7 of the Civil Procedure Act requires that the matter was directly and substantially in issue in prior proceedings. The succession court dealt with inheritance, not a section 38 Limitation of Actions claim. Moreover, the Defendant was not registered as proprietor until 2002, long after the 1969 succession cause, so the claim could not have been litigated then.

p. 3
03

Whether the assertion that the Plaintiff was never in open, continuous and exclusive occupation is a valid preliminary objection

Holding

It is not; it is merely a defence on the facts to be determined at trial.

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law capable of disposing of the suit without ascertaining facts. Whether the Plaintiff has been in open, continuous and exclusive possession for over twelve years is an evidentiary question going to the elements of adverse possession, and can only be proved or disproved at the trial of the substantive suit.

p. 2

Legal principles established

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  • A claim for adverse possession affects title to land and falls within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and section 13(2) of the Environment and Land Court Act, not the succession court.
  • Failure to challenge a succession court decision is not relevant to a claim for adverse possession, since different considerations apply to such a claim.
  • A denial of open, continuous and exclusive possession is a defence to the substantive claim, not a preliminary objection, because those are matters of fact to be proved at trial.

Court orders

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  1. 1.The Defendant's points of preliminary objection are dismissed
  2. 2.Costs of the preliminary objections awarded to the Plaintiff
  3. 3.A hearing date for the suit to be fixed at the time of delivery of the ruling

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Civil Procedure Actsection 7
  • Law of Succession ActCap 160 (generally)
  • Environment and Land Court Actsection 13(2)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (1)

  • Mukisa Biscuits Manufacturing Co Vs West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and section 13(2) of the Environment and Land Court Act, 2011; suit brought under section 38 of the Limitation of Actions Act (Cap 22)

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, "Marion Kaari Mbui v Elisha Mbogo Nthiga [2017] KEELC 868 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/868/eng@2017-11-16

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