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ELCStruck OutCase No 490 of 2015· [2018] KEELC 1474 (KLR)

George Ogake Pius v Esther Nyasani Makori & 2 others [2018] KEELC 1474 (KLR)

Environment and Land Court
12 October 2018
JMJ. M. Mutungi
2,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out an adverse possession claim filed too early — you must occupy land openly for 12 full years before suing for title.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (J. M. Mutungi, J) determined the defendants' Notice of Motion dated 14th November 2017 in an originating summons in which the plaintiff claimed title to LR No. South Mugirango/Bogetenga/3104 (a subdivision of LR No. South Mugirango/Bogetenga/2481, measuring 25 feet by 100 feet) by prescription and/or adverse possession, asserting purchase and occupation since 20th December 2010 under a sale agreement with Esther Nyasani Makori. Earlier, on 19th October 2017, the court had granted the plaintiff authority to remove stones blocking access to his house and to break a padlock. The defendants sought stay and review of those orders, which was conceded to be overtaken by events, and principally sought striking out of the originating summons for failure to meet the peremptory requirements of Section 38 of the Limitation of Actions Act, Cap 22. The court reviewed Section 7, 13(1), 37 and 38 of the Act and the Court of Appeal authorities on adverse possession, holding that a claimant must prove open, exclusive and hostile possession for a period of twelve years or more before instituting the claim. The plaintiff's possession, even if adverse, was for less than six years when the suit was filed. Applying D.T. Dobie & Company (K) Ltd v Muchina, the court held the suit disclosed no reasonable cause of action, was misconceived, incurable by amendment, and an abuse of process, and struck out the originating summons, awarding the defendants costs of both the application and the suit.

Key legal issues

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01

Whether the originating summons satisfied Section 38 of the Limitation of Actions Act

Holding

It did not; the plaintiff's adverse possession was for less than 6 years at the time of filing, well short of the statutory 12 years, so the claim disclosed no reasonable cause of action

Reasoning

The court set out the elements of adverse possession from Wambugu v Njuguna, Wanje v Saikwa (No. 2) and Kasuve v Mwaani Investments, requiring open, exclusive, hostile possession for over twelve years. The plaintiff entered under a sale agreement on 20th December 2010 and sued on 3rd November 2015, less than six years later. The doctrine could not apply and the suit could not be resuscitated by amendment.

p. 4
02

Whether a suit should be struck out despite the draconian nature of that remedy

Holding

Yes, where the suit is plainly unsustainable and incurable by amendment; prolonging it would be a futile exercise

Reasoning

Applying D.T. Dobie & Company (K) Ltd v Muchina, the court acknowledged that striking out drives a party from the seat of justice without a hearing, but held that where a suit patently discloses no reasonable cause of action and cannot be cured by amendment, the court should strike it out rather than prolong a futile hearing destined for dismissal.

p. 4

Legal principles established

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  • A claimant must adversely possess land continuously, openly and hostilely for at least 12 years before instituting an action under Sections 37 and 38 of the Limitation of Actions Act
  • A court may strike out a suit where it is patently clear the suit is unsustainable and cannot be cured by amendment

Court orders

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  1. 1.The originating summons dated 2nd November 2015 struck out
  2. 2.Costs of the application and the struck out originating sums awarded to the defendants

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 13(1)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 37(a)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 38(1)

Cases cited (4)

  • Wambugu -vs- Njuguna
    [1983] KLR 172
  • Wanje -vs- Saikwa (No. 2)
    [1984] KLR 284
  • Kasuve -vs- Mwaani Investments Ltd & 4 Others
    [2004] KLR 184
  • D.T Dobie & Company (K) Ltd -vs- Muchina
    [1982] KLR 1
Jurisdiction invoked
Original jurisdiction to strike out an originating summons under Section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Ogake Pius v Esther Nyasani Makori & 2 others [2018] KEELC 1474 (KLR)", Case Analysis (2018). Case No 490 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1474/eng@2018-10-12

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