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ELCPartially AllowedOriginating Summons dated 25/11/2003 (Murang'a)· [2018] KEELC 1108 (KLR)

Jacob Mwangi Kamau v Joseph Mwangi Kariuki & 2 others [2018] KEELC 1108 (KLR)

Environment and Land Court

31 October 2018

JKJ G Kemei

3,200 words in judgment

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The bottom line

A Murang'a court awarded a man the land he had lived on for decades, but ruled succession disputes belong in a different court.

What this practically means

Executive summary

The Plaintiff filed an originating summons on 25/11/2003, amended on 7/6/2004, under Section 76 of the Law of Succession Act, the Probate and Administration Rules and the Civil Procedure Rules, seeking injunctions against the Defendants, revocation of a grant confirmed on 8/5/2001, and a declaration that he was entitled to 0.34 hectares of parcel LOC 13/KARUNGE/1470 either as purchaser or by adverse possession. The Plaintiff claimed he and his uncle, the late Kariuki Magoto, jointly purchased two parcels in 1964 which were consolidated and registered in the deceased's name on trust, that he had occupied half the land since 1964, and that elders and the Assistant Chief had confirmed equal sharing in 1989 and 1990. The Defendants contended the deceased bought the land alone and merely accommodated the Plaintiff. The court framed two issues: revocation of the grant and adverse possession. On the first, it held the Environment and Land Court, exercising jurisdiction under Article 162(2)(b) and Section 13(2) of the Environment and Land Court Act, had no jurisdiction over beneficial interests in succession matters, and dismissed that claim. On the second, it found the Plaintiff's occupation was adverse, open, continuous and uninterrupted from 1964 until the Defendants' eviction threats in 2002, well beyond twelve years, and preferred his evidence. The court declared the Plaintiff entitled to 0.34 Ha by adverse possession, ordered subdivision and transfer at his cost, provided for execution by the Deputy Registrar on default, dismissed the revocation claim, and ordered each party to bear their own costs.

Key legal issues

Whether the ELC may revoke a grant of representation where the applicant claims a beneficial interest in estate land

Holding

Dismissed for want of jurisdiction; the claim for revocation of the grant cannot be entertained by the ELC

Reasoning

The court derived its jurisdiction from Article 162(2)(b) and Section 13(2) of the Environment and Land Court Act, which covers land disputes, but held that a dispute over beneficial interest pursuant to succession of a deceased person's estate falls outside that jurisdiction. The revocation prayer under Section 76 of the Law of Succession Act could therefore not be granted.

p. 3

Whether the Plaintiff proved adverse possession of half the suit land

Holding

Yes; the Plaintiff was declared entitled to 0.34 Ha by way of adverse possession

Reasoning

The court found the Plaintiff occupied a section of the suit land without authorization by the registered owner, continuously and peaceably from 1964 until the Defendants' eviction threats in 2002, exceeding 12 years without disruption. The Defendants themselves conceded continued occupation of the homestead portion. The Plaintiff's evidence was found more credible than the Defendants'.

p. 3

Legal principles established

A claim for adverse possession requires that entry and continued occupation be adverse to the registered owner, that the occupation be open, continuous and uninterrupted, and that it has not been disrupted for at least 12 years
The Environment and Land Court has no jurisdiction over matters of beneficial interest in the succession of estates of deceased persons

Court orders

1.The Plaintiff's claim for cancellation of grant in respect of the suit land is dismissed
2.Declaration that the Plaintiff is entitled to 0.34 Ha of the suit land by way of adverse possession; the Defendants to subdivide the land within 90 days and transfer the ½ portion to the Plaintiff
3.The suit land be subdivided at the Plaintiff's cost and the part comprising the Plaintiff's home and residence measuring 0.34 Ha be transferred and registered in his name
4.If the Defendants default, the Deputy Registrar of the Court is ordered to execute any documents necessary to facilitate the subdivision and transfer of the 0.34 Ha portion occupied by the Plaintiff
5.Each party to bear their own costs of the suit

Authorities

Legislation

Law of Succession ActSection 76 (and section 76(b))
Probate and Administration Rulesrule 44(1)
Civil Procedure RulesOrder 37 rule 1 & 3D and Order 39 Rule 1
Civil Procedure ActSection 3A
Limitation of Actions ActSection 37; section 7
Constitution of KenyaArticle 162(2)(b)
Environment and Land Court ActSection 13(2)

Cases cited (1)

Jamleck Maina Njoroge Vs Mary Wanjiru Mwangi
(2015) EKLR

Jurisdiction invoked: Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Jacob Mwangi Kamau v Joseph Mwangi Kariuki & 2 others [2018] KEELC 1108 (KLR)", Case Analysis (2018). Originating Summons dated 25/11/2003 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1108/eng@2018-10-31

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