James Kihiu Nganga & another v Esther Njeri Ngahu & 2 others [2019] KEELC 932 (KLR)

The Plaintiffs sued the 1st Defendant as legal representative of the estate of Ngahu Nganga, yet no grant of letters of administration existed. The 1st Defendant first admitted she was the legal representative, then in submissions contended she lacked locus standi. Following the Otieno v Ougo authority, an administrator must first take out letters of administration; absent the grant, the claim against her was incompetent and was struck out.

The Plaintiffs relocated to the land in 1980. The 1983 suit between father and son, and the subsequent appeal, meant time could not run against the paper owner while the litigation subsisted. Once the appeal was dismissed in 2002, the Plaintiffs' open and exclusive occupation continued uninterrupted until the suit was filed in 2015 - a period of 13 years - satisfying the 12-year requirement under section 7 of the Limitation of Actions Act.

Both registered purchasers admitted they never took possession and that the Plaintiffs repulsed their attempts to enter, destroyed boundaries and cultivated the land. There were no physical boundaries separating the parcels, so the Plaintiffs exercised exclusive control over all three. The paper owners had knowledge of the open and uninterrupted occupation, satisfying the Jandu v Kirpal and Wainaina v Murai requirement that the owner know of the dispossession.

The 3rd Defendant deponed on oath that he charged the land to AFC in 1987 but had repaid the loan in full and was processing the discharge, annexing the discharge fee payment. In submissions he reversed position, alleging a subsisting charge and faulting the Plaintiffs for not joining the lender. The court preferred his sworn testimony over the later submission, holding the land unencumbered and the argument an afterthought.