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ELCDismissedNotice of Motion dated 15.6.2016 (Murang'a ELC)· [2018] KEELC 2539 (KLR)

Jane Wakarindi Mwangi v Jotham Kamau Mwangi & 2 others [2018] KEELC 2539 (KLR)

Environment and Land Court
2 July 2018
1,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant, Jane Wakarindi Mwangi, filed a Notice of Motion on 15.6.2016 in the Environment and Land Court at Murang'a seeking eviction orders against the Respondents for alleged trespass on Loc.13/Kirunge/1794, together with permanent and interim injunctive orders restraining interference with Loc.13/Kirunge/1794 and Loc.13/Kirunge/1795, and costs. She relied on a consent order of 28.5.1985 in HCCC No. 2461 of 1979 directing Lilian Nyawira and Winnie Waiyego Mwangi to transfer eight acres to her, pursuant to which she was registered owner of Loc.13/Kirunge/1794. The 1st Respondent, on his own behalf and as legal representative of the 2nd Respondent, opposed the application, contending his family had occupied the land before the 1985 order, that the Applicant had never executed the order, and that the estate had acquired title by adverse possession after over twelve years; he also invoked section 4(4) of the Limitation of Actions Act. The court framed three issues: whether the 1985 judgment was statute-barred under section 4(4); whether the Respondents had established adverse possession; and costs. It held the section 4(4) provisions did not aid the Applicant, whose claim was one in trespass relying on the 1985 order, and that she must satisfy the Land Act eviction provisions (sections 152E, 152F and 152G). The 1985 order did not direct eviction of anyone. The court declined to determine adverse possession since it was pending in an originating summons and no evidence was adduced. The application was dismissed with costs.

Key legal issues

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01

Whether the 1985 judgment is statute-barred under section 4(4) of the Limitation of Actions Act

Holding

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

Reasoning

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.

p. 2
02

Whether the Respondents have established title by adverse possession

Holding

The court declined to determine the adverse possession claim because it is pending in a separate originating summons and no evidence was adduced

Reasoning

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.

p. 2
03

Whether the Applicant was entitled to eviction of the Respondents

Holding

No - the 1985 order did not direct eviction and the Applicant failed to satisfy the Land Act eviction provisions

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 15.6.2016 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Land ActSections 152B, 152E, 152F, 152G
  • Limitation of Actions ActSection 4(4); section 7
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

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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, "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.