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ELCDismissedOriginating Summons (Murang'a ELC)· [2019] KEELC 2773 (KLR)

Peris Njeri Muiruri & 12 others v Muiruri Gatete & 2 others [2019] KEELC 2773 (KLR)

Environment and Land Court
24 June 2019
JKJ G Kemei
3,575 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, wife and children of Muiruri Gatete and Ihomba Gatete from the second house of Njoki, brought an originating summons under sections 37 and 38 of the Limitation of Actions Act seeking declarations that they had acquired parcels LOC6/GIATHAINI/511 (part), 1031 and 992 by adverse possession, having occupied them openly since 1993, together with an order for transfer and a permanent injunction. The Defendants opposed, contending that the estate had been distributed in Succession Cause No. 164 of 1986, that the Plaintiffs' remedy lay in revocation of the grant, and that unexecuted eviction orders issued in 1998 defeated any claim of adverse possession. The court found the parties to be descendants of Gatete Gatumuta, whose estate was succeeded in 1986 with the grant confirmed on 21/2/1992. The 1st Plaintiff was registered as owner of 6.2 acres of parcel 511 and could not claim adverse possession against her own land; the claim was properly confined to the 1st Defendant's 1.7-acre portion and parcel 1031. The claim over parcel 992 and against the 2nd-4th Defendants was struck out because they lacked letters of representation for the estate of Njuguna Gatete. On the merits, the court held that occupation became adverse in 1992 upon confirmation of the grant, but time was interrupted by the 1998 eviction orders, which had a life span of twelve years expiring in 2010. The twelve-year period would therefore expire in 2022, rendering the 2019 suit premature. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Plaintiffs' possession was adverse and of the requisite 12-year duration

Holding

Possession was continuous and open since before 1992, but time was interrupted by the 1998 eviction orders which subsisted until 2010, so the 12-year period would expire in 2022 and the suit was premature

Reasoning

The court accepted the Plaintiffs occupied the land from before the 1992 confirmation of grant. However, the 1st Defendant obtained eviction orders in 1998 in the succession cause. Those orders had a life span of 12 years, expiring in 2010, during which time did not run. Time therefore restarted in 2010, meaning the 12-year limitation period would only mature in 2022, rendering the 2019 suit premature.

p. 5
02

Whether the 1st Plaintiff could claim adverse possession against parcel LOC6/GIATHAINI/511

Holding

No - she is a registered co-owner of 6.2 acres and can only claim against the 1st Defendant's 1.7-acre portion

Reasoning

The green card and official search confirmed the 1st Plaintiff owns 6.2 acres of parcel 511 jointly with the 1st Defendant who owns 1.7 acres. A proprietor cannot be adverse to her own title. The court therefore construed the claim as being only against the 1st Defendant's share.

p. 4
03

Whether the 2nd-4th Defendants were properly before the court

Holding

They were non-suited as they had no letters of representation for the estate of Njuguna Gatete

Reasoning

The Plaintiffs sued the 2nd-4th Defendants as beneficiaries of the estate of Njuguna Gatete, registered owner of parcel 992, but produced no evidence that they had obtained letters of administration. Without such mandate they could not represent the estate or be linked to the parcel, so the claim over parcel 992 and against them was struck out.

p. 3

Legal principles established

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  • Occupation under permission of the registered owner cannot be adverse; time begins to run when possession becomes adverse, e.g. upon confirmation of grant distributing the land
  • Execution of court orders interrupts the running of time for adverse possession for the life of the orders (12 years)
  • A party cannot claim adverse possession against land registered in their own name
  • A person sued on behalf of a deceased's estate must be clothed with letters of representation

Court orders

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  1. 1.The claim in respect of parcel LOC6/GIATHAINI/992 and against the 2nd-4th Defendants struck out
  2. 2.The suit against the 1st Defendant in respect of LOC6/GIATHAINI/511 (part) and LOC6/GIATHAINI/1031 dismissed as prematurely brought
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsections 37 & 38
  • Limitation of Actions Act (Cap 22)section 7
  • Civil Procedure RulesOrder 37 Rule 7(1) and (2)
  • Civil Procedure Actsection 3A
  • Land Registration Actsection 28

Cases cited (1)

  • Kimani Ruchine vs Swift Rutherford & Co. Ltd
    (1980) KLR 10
Jurisdiction invoked
Sections 37 & 38 of the Limitation of Actions Act, Order 37 Rule 7(1) and (2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Peris Njeri Muiruri & 12 others v Muiruri Gatete & 2 others [2019] KEELC 2773 (KLR)", Case Analysis (2019). Originating Summons (Murang'a ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2773/eng@2019-06-24

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