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ELCDismissedE.L.C. Case No. 47 of 2015 (Formerly Kerugoya ELC Case No. 219 of 2014)· [2018] KEELC 99 (KLR)

Lucy Marigu Karungu v Patrick Maina S Gitu [2018] KEELC 99 (KLR)

Environment and Land Court of Kenya
15 November 2018
YAY.M. Angima
1,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, as legal representative of the estate of the late John Karungu, sued the Defendant for eviction from Plot No. 1112/870 Majengo Site Embu, mesne profits and costs, alleging that the Defendant had wrongfully encroached on and developed the plot allocated to the deceased by the defunct Municipal Council of Embu. The Defendant denied trespass, contending that he purchased the plot in 1989 from one Elias Kanambiu, who had himself bought it from Karungu, in the presence of the deceased, and that he built a storey building at a cost of about Kshs 8 million. The Defendant further paid plot arrears of Kshs 86,357.00 to the National Housing Corporation in 2011. The court framed three issues: ownership of the suit property, entitlement to the reliefs sought, and costs. On the evidence, the court believed the Defendant and his witness that Karungu sold the plot first to Kanambiu and that the subsequent 1989 sale to the Defendant occurred at the offices of M/S Njiru & Co Advocates with the deceased's knowledge and participation. The deceased never sought to recover the property during his lifetime despite the construction thereon. The court found the property was not part of Karungu's estate and that the Plaintiff's mistaken inclusion of it in succession proceedings could not confer a proprietary interest. The Plaintiff's suit was dismissed with costs to the Defendant under section 27 of the Civil Procedure Act, costs following the event.

Key legal issues

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01

Whether the suit property belonged to the Plaintiff or the Defendant

Holding

The court found the suit property was first sold by the late Karungu to Kanambiu, who in turn sold it to the Defendant in 1989 in Karungu's presence; the Defendant rightfully acquired it by purchase.

Reasoning

The court believed the Defendant and DW2 that Karungu was aware of and present at the 1989 sale agreement executed at M/S Njiru & Co Advocates. The 4-storey building was constructed during Karungu's lifetime without any attempt by him to recover the property, and he actively participated in the construction. The Defendant also cleared arrears of Kshs 86,357.00 with the National Housing Corporation in 2011, conduct inconsistent with having no interest in the property.

p. 2
02

Whether the Plaintiff was entitled to the reliefs sought in the plaint

Holding

The Plaintiff failed to prove her claim; the property was not part of the deceased's estate and any mistaken inclusion in succession proceedings could not confer a proprietary interest on her.

Reasoning

Since Karungu had sold the property during his lifetime, it did not vest in his estate. The Plaintiff's error in the succession proceedings could not create ownership. The claim for eviction and mesne profits therefore failed.

p. 2

Legal principles established

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  • Costs follow the event and a successful party should ordinarily be awarded costs unless there is good reason to direct otherwise.

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs to the Defendant.

Authorities

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Legislation

  • Civil Procedure Actsection 27

Cases cited (1)

  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to ownership and occupation of land (Plot No. 1112/870 Majengo Site Embu)

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, "Lucy Marigu Karungu v Patrick Maina S Gitu [2018] KEELC 99 (KLR)", Case Analysis (2018). E.L.C. Case No. 47 of 2015 (Formerly Kerugoya ELC Case No. 219 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/99/eng@2018-11-15

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