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ELCDismissedOriginating Summons dated 6th June 2019· [2019] KEELC 178 (KLR)

Ekwiy Moses Alanyi v Shabaan Edi Leposo & another (sued on behalf of the Estate of the Late Iddi Malambu Hassan) [2019] KEELC 178 (KLR)

Environment and Land Court
16 December 2019
COChristine Ochieng
1,126 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed you can still claim land ownership through long occupation even after the landowner has died and their estate has been distributed.

What this practically means

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Executive summary

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The Respondents, administrators of the estate of the late Iddi Malambu Hassan, raised a preliminary objection to the Applicant's Originating Summons claiming the suit land (plot Ngong/Ngong/4437) by adverse possession. They argued that the estate had already been distributed in Kajiado Succession Cause No. 64 of 2016, confirmed on 10th May 2019, and therefore there was no estate against which they could be sued. The Applicant countered that he had been in quiet possession for over twelve years on land given to him by the deceased, and that although the estate was distributed, transfers had not been effected and the suit land remained registered in the deceased's name. Judge Christine Ochieng framed a single issue: whether the Respondents could be sued as administrators after distribution of the estate. Applying the Mukhisa Biscuit test for preliminary objections, and with the Supreme Court's guidance in the IEBC v Cheperenger case, she held that some facts had to be ascertained, so the objection did not qualify as a pure point of law. Distinguishing the Kasuve decision, where only some beneficiaries were sued after administration was complete, the court found the suit properly anchored against the administrators and beneficiaries, since adverse possession attaches to land irrespective of changes in title. Relying on Article 159(2)(d), the court dismissed the objection as an appeal to procedural technicality, ordered costs in the cause, and directed the parties to set the suit down for hearing on its merits.

Key legal issues

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01

Whether a preliminary objection lies against a suit filed against administrators of a distributed estate

Holding

The preliminary objection fails because facts must be ascertained and the suit is maintainable against the administrators and beneficiaries of the estate

Reasoning

The court applied the Mukhisa Biscuit test that a preliminary objection must be a pure point of law. Here, whether the suit land had been transferred and whether possession was adverse required factual inquiry. Unlike Kasuve, where only some beneficiaries were sued after administration was wound up, the applicant sued the administrators and beneficiaries before transfers were effected.

p. 2
02

Whether adverse possession can run against a deceased's estate

Holding

Adverse possession attaches to land irrespective of changes in title, and the administrators represent the registered owner for purposes of such a claim

Reasoning

The deceased was registered as owner of the parent title from which the suit land was excised. The doctrine of adverse possession runs with the land notwithstanding any change in title. The administrators, being representatives of the registered owner, were properly sued before transfers to beneficiaries had been effected.

p. 2

Legal principles established

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  • Adverse possession attaches to land irrespective of whether title has changed hands, and an adverse possession claim may be brought against administrators of an estate before transfers to beneficiaries are effected

Court orders

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  1. 1.Notice of Preliminary Objection dated 28th June 2019 disallowed
  2. 2.Costs in the cause
  3. 3.Parties urged to set down the suit for hearing on its merits

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (6)

  • Mukhisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Company Limited
    (1969) EA 696
  • Aviation and Allied Workers Union Kenya V Kenya Airways Limited & 3 Others
    (2015) eKLR
  • Titus Mutuku Kasuve V Mwani Investments Limited & 4 Others
    (2004) eKLR
  • The Estate of the late Annelies Anna Graff
    (2019) eKLR
  • Gitau and 2 Others Vs Wandai & 5 Others
    (1989) KLR
  • Independent Electoral and Boundaries Commission V Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014
Jurisdiction invoked
Article 159(2)(d) of the Constitution; law of succession and adverse possession

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, "Ekwiy Moses Alanyi v Shabaan Edi Leposo & another (sued on behalf of the Estate of the Late Iddi Malambu Hassan) [2019] KEELC 178 (KLR)", Case Analysis (2019). Originating Summons dated 6th June 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/178/eng@2019-12-16

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