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ELCDismissedELC No. 2 of 2012 (formerly High Court Civil Suit No. 83 of 1995)· [2018] KEELC 517 (KLR)

Tiriki Farmers Company Limited & 51 others v Harry James Onamu & 2 others [2018] KEELC 517 (KLR)

Environment and Land Court
20 December 2018
1,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A 23-year-old land claim collapsed because the company never replaced a deceased defendant within one year and failed to prove who actually owned the land title.

What this practically means

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Executive summary

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This first-instance land dispute was begun by plaint dated 2nd June 1995 (as High Court Civil Suit No. 83 of 1995) and later transferred to the Environment and Land Court as ELC No. 2 of 2012. The plaintiff company sought cancellation of the title to LR No. 1898 Kaimosi Area, Nandi District, a declaration that its 51 bona fide members had acquired their occupied portions by adverse possession with rectification of the register, general damages and costs. The plaintiffs claimed that in 1973 the company raised Kshs. 80,000 through its members, purchased 324.5 acres from Ernest Floyer, appointed Harry James Onamu as trustee, and took possession, but that the 1st defendant secretly obtained title deeds in the names of non-members and invited relatives onto the land in 1995. Odeny J framed the central issue as whether a party existed against whom the suit could stand. The record showed the 1st defendant had died about four years before 16th October 2006, and the plaintiffs were aware of the death yet neither substituted nor applied to revive the suit, which abated after one year. Since the plaint was anchored on the 1st defendant's actions, no orders could issue against anyone. The court declined to reach the merits, observing that adverse possession must be proved against a registered owner by official search or certified extract of the register, which the plaintiffs did not produce, and noting the absence of proof of directors' authority to sue. The suit against the 1st defendant was declared abated, the claim against the 2nd defendant failed as unproved, and no costs were ordered since there was no defendant to receive them. Judgment delivered at Eldoret on 20th December 2018.

Key legal issues

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01

Whether the suit could stand against any defendant

Holding

The suit against the 1st defendant abated upon his death as no substitution or revival application was made within one year, and without him there is no defendant against whom orders can issue

Reasoning

The 1st defendant died about four years before 16th October 2006, yet the plaintiffs, aware of the death (as shown by Timoteo Achula's affidavit), took no steps to substitute or abandon the suit against him. The plaint is anchored on the 1st defendant's actions, so without him or a replacement the court cannot issue orders. The court therefore declined to reach the merits.

p. 2
02

Whether the plaintiffs proved adverse possession

Holding

The claim failed; the plaintiffs did not prove the registered owner, producing only a memorandum of registration of transfer without an official search or certified extract of the register

Reasoning

Adverse possession requires continuous, uninterrupted and hostile possession against a registered owner. Proprietorship is established by a certified official search or extract of the green card (per Johnson Kinyua v Simon Gitura Rumuri). The plaintiffs produced only a 1975 memorandum of registration of transfer, and if the court were to cancel a title allegedly subdivided to third parties, proof of the owners and exact numbers would be needed.

p. 2
03

Whether the plaintiff company had authority to institute the suit

Holding

There was no proof that the directors had authority to institute the suit on behalf of the company

Reasoning

The plaintiff is a limited liability company, a separate legal person. The judgment notes there was no proof of directors having authority to institute the suit, an additional basis for declining relief, though the primary ground of dismissal was abatement against the 1st defendant and failure of proof against the 2nd defendant.

p. 2

Legal principles established

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  • A suit against a deceased defendant abates if no substitution is made within one year of death
  • A claim of adverse possession must be against a registered owner, whose proprietorship is proved by official search or certified extract of the green card
  • A limited liability company is a legal person in its own right and proof of directors' authority to institute suit is required

Court orders

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  1. 1.Suit against the 1st defendant declared abated
  2. 2.Claim against the 2nd defendant dismissed for want of proof
  3. 3.No order as to costs - plaintiff not ordered to pay costs as there is no defendant to be paid costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit transferred from the High Court to the Environment and Land Court)

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, "Tiriki Farmers Company Limited & 51 others v Harry James Onamu & 2 others [2018] KEELC 517 (KLR)", Case Analysis (2018). ELC No. 2 of 2012 (formerly High Court Civil Suit No. 83 of 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/517/eng@2018-12-20

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