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ELCDismissedNyeri ELC No. 3 of 2014 (with Nyeri HCCC No. 240 of 2013)· [2018] KEELC 4280 (KLR)

Mary Njeri Gicheha v Benedict Obonyo Omollo, Patrick Muraguri & Onesmus Kagema (Environment & Land Case 3 of 2014) [2018] KEELC 4280 (KLR)

Environment and Land Court of Kenya
28 February 2018
5,666 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Nyeri Environment and Land Court struck out a woman's adverse possession claim as premature and dismissed her second land suit because courts do not allow repeated litigation over the same property.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nyeri (L N Waithaka, J) disposed of two sets of applications involving Mary Njeri Gicheha (plaintiff) and the registered proprietors of Nyeri/Waraza/1362. In ELC No. 3 of 2014 the plaintiff sought a declaration of adverse possession and an order for transfer. The defendants filed a preliminary objection contending lack of locus standi, prematurity and non-disclosure, while the plaintiff filed a reciprocal preliminary objection invoking Section 13(2) of the Land Control Act. The court held that the plaintiff, claiming on her own occupation, had locus standi without letters of administration, but that her adverse possession claim was premature: the defendants' title issued on 18th December 2008, barely six years before suit, and the predecessors in title against whom twelve years might have run were not parties, applying Nduhiu Kanja, Mwinyi Hamisi Ali and Wilson Kazungu Katana. The court also held that the Appeals Board decision did not nullify the titles, only a court could do so under the Registered Land Act. The plaintiff's request to strike out the defendants' out-of-time pleadings was refused for want of demonstrated prejudice, in line with Article 159. The suit was struck out with costs. In HCCC No. 240 of 2013 the plaintiff's injunction suit was held res judicata Nyeri SRMCC No. 237 of 1972 and Nyeri CMCC No. 59 of 2007 and dismissed with costs; HCCC No. 41 of 1991 was noted to have abated automatically on death without substitution.

Key legal issues

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01

Locus standi of the plaintiff to claim adverse possession without letters of administration

Holding

She has capacity since her claim is premised on her own occupation, not her deceased husband's entitlement

Reasoning

The pleadings show the adverse possession claim is founded on the plaintiff's own alleged possession and occupation rather than on any claim of her late husband. Because the claim is independent of the estate, letters of administration are not a prerequisite to prosecuting it, and the locus standi limb of the preliminary objection fails.

p. 3
02

Prematurity of adverse possession claim against current registered owners

Holding

Claim premature; possession had not run adverse to the respondents for 12 years and predecessors in title were not parties

Reasoning

The respondents' title issued on 18th December 2008 and the suit was filed barely six years later. Further, there is no averment that the plaintiff successfully prosecuted adverse possession against the respondents' predecessors, without whose titles being extinguished she cannot defeat the respondents' title. Authorities of the Court of Appeal were applied.

p. 5
03

Res judicata of Nyeri HCCC No. 240 of 2013 suit

Holding

The claim is res judicata Nyeri SRMCC No. 237 of 1972 and Nyeri CMCC No. 59 of 2007 and is dismissed

Reasoning

Although framed as a personal occupation claim, the pleadings reveal the claim traces to the dispute between the plaintiff's late husband and George Gichuki Mwaniki decided in SRMCC No. 237 of 1972, and she had litigated against the predecessor in title in CMCC No. 59 of 2007 which was dismissed. A party cannot evade res judicata by re-packaging a failed claim.

p. 8
04

Whether the Appeals Board decision nullified the respondents' titles

Holding

It did not; only a court could nullify titles under the Registered Land Act, and invalidity of title is irrelevant to an adverse possession claim anyway

Reasoning

The Land Control Appeals Board decision on the invalid consent did not have the effect of nullifying the issued titles since nullification was a judicial function under the Registered Land Act. Moreover, the adverse possession claim is based on occupation, not on invalidity of title, so the jurisdictional challenge founded on Section 13(2) of the Land Control Act does not assist the plaintiff.

p. 5

Legal principles established

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  • A claimant in adverse possession cannot sustain a claim against a current registered proprietor without proving that the predecessors' titles were extinguished, the predecessors not being parties
  • Under the Registered Land Act only the court could nullify titles issued, not the Land Control Appeals Board
  • Res judicata bars re-litigation of matters resolved in former suits including claims packaged in a new form
  • Abatement of a suit on death without substitution within one year is automatic

Court orders

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  1. 1.The respondents' preliminary objection dated 16th May 2016 is upheld
  2. 2.The plaintiff's suit (adverse possession summons in Nyeri ELC No. 3 of 2014) is struck out with costs to the respondents
  3. 3.The plaintiff's claim in Nyeri HCCC No. 240 of 2013 is found to be res judicata and dismissed with costs to the respondents
  4. 4.The plaintiff's request to strike out the respondents' responses and preliminary objection is refused
  5. 5.Nyeri HCCC No. 41 of 1991 noted to have abated by operation of law one year after the death of the plaintiff's husband without substitution

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure Act, Cap 21Section 1A; Section 7 (including explanation (4))
  • Land Control Act, Cap 302Section 13(2)
  • Registered Land Act, Cap 300 (repealed)general
  • Limitation of Actions ActSections 7 and 13(1)

Cases cited (13)

  • Nduhiu Kanja v. Francis Kanake Wahome
    Nyeri ELC No. 509 of 2014
  • Mwinyi Hamisi Ali v. Attorney General & Another
    Civil Appeal No. 125 of 1997
  • Wilson Kazungu Katana & 101 Others v. Salim Abdalla Bakswein & Another
    (2015) eKLR
  • Kasuve v. Mwaani Investment Ltd & 4 others
    (2004) 1 KLR 184
  • Wanje v. Saikwa (No.2)
    (1984) KLR 284
  • Pashito Holdings Limited & Another v. Paul Nderitu Ndungu & 2 Others
    (1197) eKLR [as printed]
  • Housing Finance Company of Kenya v J. N. Wafubwa
    [2014] eKLR
  • Uhuru Highway Development Ltd v Central Bank & 2 Others
    Civil Appeal No. 36 of 1996
  • Henderson vs. Henderson
    (1843-60) ALL ER 378
  • Edwin Thuo v Attorney General & another
    Nairobi Petition No. 212 of 2012
  • Omondi v National Bank of Kenya Limited and Others
    [2001] EA 177
  • Njangu v Wambugu and Another
    Nairobi HCCC No. 2340 of 1991
  • M'Mboroki M'arangacha Vs Land Adjudication Officer Nyambene & 2 others
    [2005] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; plaintiff alternatively invoked Section 13(2) of the Land Control Act, Cap 302 as ouster

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, "Mary Njeri Gicheha v Benedict Obonyo Omollo, Patrick Muraguri & Onesmus Kagema (Environment & Land Case 3 of 2014) [2018] KEELC 4280 (KLR)", Case Analysis (2018). Nyeri ELC No. 3 of 2014 (with Nyeri HCCC No. 240 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4280/eng@2018-02-28

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