Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedChuka ELC No. 276 of 2017 (O.S)· [2018] KEELC 2909 (KLR)

Erastus Njagi Kamunde v Linus Riungu M’Kanga [2018] KEELC 2909 (KLR)

Environment and Land Court
25 June 2018
983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This originating summons, filed on 14th August 2017 in the Environment and Land Court at Chuka, sought an order that the applicant, Erastus Njagi Kamunde, be registered as owner of 2 acres of Land Parcel No. MWIMBI/N.MUGUMANGO/1318 by way of adverse possession. The respondent, Linus Riungu M'Kanga, had earlier filed HCCC 60 of 2008 at Meru (now Chuka ELC Case No. 94 of 2017), seeking removal of a caution registered by the applicant and a permanent injunction against trespass; that suit was nearly heard to conclusion. The applicant had disclosed the pending suit when filing. Justice P.M. Njoroge held it undesirable and an abuse of the court process to maintain two parallel suits between the same parties over the same subject matter, as this negates the conclusiveness of any judgment and is antithetical to the overriding objective of the Civil Procedure Act. The court further held that even assuming time for adverse possession ran from the 22nd April 2002 sale agreement, only about six years had elapsed before the respondent filed suit in May 2008, and following William Gatuhi Murathe v Gakuru Gathumbi and Heath v Pugh, time for adverse possession is interrupted once the party against whom the claim is made moves to court to assert his claim. Invoking section 3A of the Civil Procedure Act, the court dismissed the suit. Consolidation was considered but ruled out because the earlier suit was almost concluded. No costs were awarded to any party.

Key legal issues

#
01

Whether two parallel suits between the same parties over the same land constitute an abuse of the court process

Holding

Yes; the adverse possession suit was an abuse of process and was dismissed under the court's inherent jurisdiction

Reasoning

The applicant filed the adverse possession originating summons in 2017 while Chuka ELC No. 94 of 2017, between the same parties over the same parcel, filed in 2008, was pending almost to conclusion. The court held parallel suits over the same subject matter are antithetical to the overriding objective of the Civil Procedure Act, negate the conclusiveness of any judgment, and should attract judicial opprobrium. Consolidation was not feasible as the earlier suit was nearly concluded.

p. 2
02

Whether the period of adverse possession had accrued

Holding

No; even if time ran from the 2002 sale agreement, the filing of Meru HCCC 60 of 2008 in May 2008 interrupted it before the statutory period elapsed

Reasoning

The sale agreement relied on was dated 22nd April 2002 and the respondent filed suit on 23rd May 2008. Even assuming time ran from the agreement, only about six years had elapsed when suit was filed. Citing William Gatuhi Murathe v Gakuru Gathumbi and Heath v Pugh, the court held time stops running once the registered owner asserts his claim in court. The claim would in any event have failed.

p. 2

Legal principles established

#
  • Time counted for adverse possession is interrupted and stops once the party against whom the claim is made moves to court to assert his claim over the suit property
  • It is undesirable to have two parallel suits concerning the same subject matter between the same parties, as such a situation negates the conclusiveness of the court's judgment

Court orders

#
  1. 1.The suit (Chuka ELC No. 276 of 2017, O.S) is dismissed
  2. 2.No costs awarded to any of the parties

Authorities

#

Legislation

  • Civil Procedure ActSection 3A (overriding objective)

Cases cited (2)

  • William Gatuhi Murathe Versus Gakuru Gathumbi
    [1998] eKLR
  • Heath Versus Pugh
    (1881) (C.A) C.P.D. 345
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power to prevent abuse of court process)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Erastus Njagi Kamunde v Linus Riungu M’Kanga [2018] KEELC 2909 (KLR)", Case Analysis (2018). Chuka ELC No. 276 of 2017 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2909/eng@2018-06-25

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