Munyiva Munyao & 2 others v Prisila Munyiva Matuva (Personal Representative of the Estate of Philip Matuva Kivuvo –Deceased) [2018] KEELC 15 (KLR)
The bottom line
#A Kenyan court struck out a family land claim because the plaintiffs failed to join a deceased person's estate and couldn't prove possession of the specific parcels they claimed.
What this practically means
#Executive summary
#Key legal issues
#Non-joinder of necessary parties (deceased's estate/personal representatives)
The first question could only be answered by the deceased or his personal representatives; their omission was fatal to the Originating Summons
The court accepted counsel's submission under Orders 1 and 2 of the Civil Procedure Rules that the deceased Ndeti Manandu or his personal representatives were necessary parties. The Defendant, as a mere buyer, was not privy to the parcel's history, and the Plaintiffs, having an interest, could not satisfactorily answer the question, which would culminate in an exparte hearing. The claim was therefore struck out.
Claim of trust over registered land
The trust claim was farfetched; although land may be registered in trust for family members under section 26 of the Land Registration Act and the repealed Registered Land Act, a basis must be laid in court
The court agreed with the Defendant that the assertion of a trust was farfetched. The Defendant was the registered absolute proprietor of Mbooni/Iiani/1079 and 1057, and the abstract of title attached to the summons disclosed no trust. While trust registration is legally recognized, the Plaintiffs laid no evidential basis for such a finding.
Adverse possession
The adverse possession claim failed because the Plaintiffs did not show possession of the specific parcels claimed
A claimant must be in possession of the land claimed and use it adversely to the proprietor's rights. The Plaintiffs lived on parcel Mbooni/Iiani/408, which no longer exists after subdivision, and did not discharge the burden of specifically identifying the portions, sizes and locations of the land in their possession. No dispossession of the Defendant was shown.
Legal principles established
#- All necessary and proper parties, but no others, should be before the court so that all matters in dispute may be effectively and completely determined
- Non-joinder of a deceased person's estate or personal representatives renders a claim requiring the deceased's answer untriable
Court orders
#- 1.The Originating Summons is struck out
- 2.Costs of the suit awarded to the Defendant/Respondent
- Jurisdiction invoked
- First-instance jurisdiction of the Environment and Land Court over the Originating Summons; no specific constitutional or statutory basis invoked in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyiva Munyao & 2 others v Prisila Munyiva Matuva (Personal Representative of the Estate of Philip Matuva Kivuvo –Deceased) [2018] KEELC 15 (KLR)", Case Analysis (2018). Originating Summons (undated on record; preliminary objection dated 3rd February, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/15/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.