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ELCStruck OutOriginating Summons (undated on record; preliminary objection dated 3rd February, 2011)· [2018] KEELC 15 (KLR)

Munyiva Munyao & 2 others v Prisila Munyiva Matuva (Personal Representative of the Estate of Philip Matuva Kivuvo –Deceased) [2018] KEELC 15 (KLR)

Environment and Land Court
19 December 2018
1,381 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 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

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni (Mbogo C.G, J) on the Defendant/Respondent's preliminary objection dated against an Originating Summons in which the Plaintiffs/Applicants, personal representatives of the estate of Munyao Mumandu, sought determinations concerning land parcels Mbooni/Iiani/1079 and 1057 registered in the Defendant's name, including a claim that the Defendant held the land in trust for them and a declaration of ownership by adverse possession. Only the Defendant filed submissions. Her counsel argued that the first question in the summons could only be answered by the late Ndeti Manandu or his personal representatives, neither of whom had been joined, offending Orders 1 and 2 of the Civil Procedure Rules; that the trust claim was farfetched given the Defendant's registration as absolute proprietor; and that the Plaintiffs resided on parcel 408, which no longer exists, and had not identified the portions they occupied adversely. Citing I.H Jacob's Precedents of Pleadings, Order 2 rule 15 of the Civil Procedure Rules, and the cases of Christopher Iddi Moto and Githu v Ndele, the court agreed on all three points: non-joinder of the deceased's estate rendered the first question untriable; the trust assertion was farfetched; and adverse possession failed for want of identified possession of the specific parcels. The court struck out the Originating Summons with costs to the Defendant/Respondent.

Key legal issues

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01

Non-joinder of necessary parties (deceased's estate/personal representatives)

Holding

The first question could only be answered by the deceased or his personal representatives; their omission was fatal to the Originating Summons

Reasoning

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.

p. 2
02

Claim of trust over registered land

Holding

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

Reasoning

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.

p. 2
03

Adverse possession

Holding

The adverse possession claim failed because the Plaintiffs did not show possession of the specific parcels claimed

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Originating Summons is struck out
  2. 2.Costs of the suit awarded to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 rule 15(1)
  • Civil Procedure Rules, 2010Order 2 rule 15(3)
  • Civil Procedure Rules, 2010Orders 1 and 2 (parties to suits and pleadings)
  • Land Registration Actsection 26
  • Registered Land Act (repealed)

Cases cited (2)

  • Christopher Iddi Moto & 15 Others Vs Chiriba Nyambu Baru & Another
    [2014] eKLR
  • Githu Vs Ndele
    (1984) KLR 776
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

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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, "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.