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ELCPartially AllowedNot stated in the judgment as provided· [2019] KEELC 1085 (KLR)

Mary Waithera v Mary Nyokabi Ngugi & another [2019] KEELC 1085 (KLR)

Environment and Land Court
31 October 2019
1,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court revived an adverse possession claim after the plaintiff's death, but refused to stop the registered owner from demanding vacant possession.

What this practically means

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Executive summary

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This was a Notice of Motion dated 19th November 2018 brought by Mary Waithera, legal representative of the estate of John Kinyanjui Ngugi Ng'aaru, seeking reinstatement of a suit that abated following the plaintiff's death on 11th September 2017, her substitution as plaintiff, and a temporary injunction restraining the respondents from interfering with her occupation of L.R No. Limuru/Ngecha/2811, which she claimed to occupy since 1985 under an adverse possession claim. The applicant explained that she needed time to obtain letters of administration and learnt of the dismissal when the 1st respondent served her with the abatement order and a demand letter. The application was unopposed; the 1st respondent did not respond, and purported service on the 2nd respondent was ineffective since he died in 2015. The court found the deceased's former advocates culpable for repeated non-attendance leading to the abatement order of 1st October 2018, but, given the nature of the dispute, allowed reinstatement and substitution so the suit could be heard on merit. However, the injunction was refused: the 1st respondent is the registered owner, his demand letter was not wrongful since no suit was pending, no prima facie case or irreparable harm was shown, and no extra-judicial eviction was threatened. The court set aside the abatement order as against the 1st respondent, reinstated the suit against him only, allowed substitution, dismissed the injunction prayer, and awarded thrown away costs of Kshs.7,000/= to the 1st respondent.

Key legal issues

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01

Whether the abated suit should be reinstated and the applicant substituted

Holding

The suit was reinstated as against the 1st respondent only, with the applicant substituted as plaintiff

Reasoning

The court noted that the deceased died on 11th September 2017, his advocates failed to attend court and to advise on the estate's interest, and a notice to show cause went unheeded leading to the abatement order of 1st October 2018. Given the nature of the dispute, the court was persuaded that reinstatement and substitution would allow the suit to be heard on merit, but condemned the applicant to thrown away costs due to the advocates' conduct.

p. 1
02

Whether a temporary injunction should issue

Holding

The prayer for injunction was dismissed

Reasoning

The court held that the 1st respondent is the registered owner of the suit property and that following abatement there was no suit pending; his demand that the applicant vacate was therefore not wrongful and could not establish a prima facie case. Irreparable harm was not demonstrated because the respondent threatened legal proceedings, not extra-judicial eviction. The applicant had also not yet been substituted as plaintiff.

p. 2
03

Service of the application on the 2nd respondent

Holding

Service on the 2nd respondent was ineffective as he died in 2015 and was never substituted

Reasoning

The court observed that the process server purportedly served the 2nd respondent at offices at Hazina Towers, yet the 2nd respondent had died in 2015 and not been substituted, making such service impossible. The 1st respondent did not respond and the application was unopposed at the hearing before the court.

p. 1

Legal principles established

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  • Where a suit abates following the death of a plaintiff, the court may reinstate the suit and substitute the deceased's legal representative so the suit can be heard on merit.
  • A demand to vacate made by a registered owner after abatement of an adverse possession suit is not wrongful and cannot found an injunction; the applicant must establish a prima facie case and irreparable harm.

Court orders

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  1. 1.The orders issued on 1st October 2018 are set aside as concerns the 1st respondent and the suit is reinstated for hearing on merit as against the 1st respondent only
  2. 2.The applicant is substituted as plaintiff in place of the deceased, John Kinyanjui Ng'aaru, and the Originating Summons shall be amended accordingly
  3. 3.The prayer for injunction is dismissed
  4. 4.The applicant shall pay to the 1st respondent forthwith thrown away costs assessed at Kshs.7,000/=
Jurisdiction invoked
Inherent powers of the court to reinstate a suit and grant substitution following abatement of a suit upon the death of a plaintiff (civil procedure)

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 Waithera v Mary Nyokabi Ngugi & another [2019] KEELC 1085 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1085/eng@2019-10-31

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