Jane Wakarindi Mwangi v Jotham Kamau Mwangi & 2 others [2018] KEELC 2539 (KLR)
The bottom line
#A Murang'a court refused to evict occupants from land because a 1985 court order transferring ownership did not itself authorise eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1985 judgment is statute-barred under section 4(4) of the Limitation of Actions Act
The section does not aid the Applicant's case as pleaded; the claim is one in trespass relying on the 1985 order, and eviction must proceed under the Land Act
The court reproduced section 4(4) of the Limitation of Actions Act but held that, going by the prayers sought, this was a claim based on trespass to LoC 13/Kirunge/1794 relying on the 1985 court order. The provisions of section 4(4) would not aid the Applicant; in any event eviction must comply with sections 152E, 152F and 152G of the Land Act.
Whether the Respondents have established title by adverse possession
The court declined to determine the adverse possession claim because it is pending in a separate originating summons and no evidence was adduced
The Respondents had filed a claim by originating summons which was pending; the court considered it unnecessary to forestall that suit. Further, no evidence was adduced by the Respondent on the adverse possession claim in this application, so the question was left open for the originating summons.
Whether the Applicant was entitled to eviction of the Respondents
No - the 1985 order did not direct eviction and the Applicant failed to satisfy the Land Act eviction provisions
It was common ground the Applicant became registered owner of LoC 13/Kirunge/1794 pursuant to the 1985 consent order, but that order did not direct eviction of the Respondents or any other persons. The Applicant therefore could not use this application to obtain eviction without complying with sections 152E, 152F and 152G of the Land Act.
Legal principles established
#- An action upon a judgment may not be brought after twelve years from the date the judgment was delivered (section 4(4), Limitation of Actions Act)
- A party seeking eviction must satisfy the substantive eviction procedure under sections 152E, 152F and 152G of the Land Act
Court orders
#- 1.The Notice of Motion dated 15.6.2016 is dismissed with costs
- 2.It is so ordered
- Jurisdiction invoked
- not stated in the judgment; the application was founded on the court orders of 28.5.1985 in HCCC No. 2461 of 1979 and Sections 152B, E, F and G of the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Wakarindi Mwangi v Jotham Kamau Mwangi & 2 others [2018] KEELC 2539 (KLR)", Case Analysis (2018). Notice of Motion dated 15.6.2016 (Murang'a ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2539/eng@2018-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.