Erastus Njagi Kamunde v Linus Riungu M’Kanga [2018] KEELC 2909 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether two parallel suits between the same parties over the same land constitute an abuse of the court process
Yes; the adverse possession suit was an abuse of process and was dismissed under the court's inherent jurisdiction
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.
Whether the period of adverse possession had accrued
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
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.
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.The suit (Chuka ELC No. 276 of 2017, O.S) is dismissed
- 2.No costs awarded to any of the parties
- 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.