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ELCDismissedCase No 1249 of 2016· [2019] KEELC 2935 (KLR)

Samuel Nyankanga Areri v Francis Omundi Gwako & another [2019] KEELC 2935 (KLR)

Environment and Land Court / High Court of Kenya at Kisii (court not expressly designated in judgment)
14 June 2019
JMJ. M. Mutungi
4,272 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Kisii court dismissed a family land claim because the wrong type of grant was used, no trust was proved, and the claim came far too late.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of Areri Nyakanga, sued the Defendants claiming that in 1960 his late father sold them land for 25 head of cattle, of which only 20 were paid, and that the Defendants caused themselves to be registered as proprietors of LR Bassi/Bondonya/349, awarding themselves 2 excess acres. He sought declarations of trust, termination, transfer, an injunction and mesne profits. The Defendants denied the claim, asserted full payment and due adjudication and title in 2001, and counterclaimed for special and general damages for trespass. The court framed four issues: locus, limitation, trust, and reliefs. On locus, the Plaintiff's limited grant ad colligenda bona, issued under Section 67(1) of the Law of Succession Act and endorsed only for filing a civil suit and preserving the estate, did not confer capacity to institute proceedings on behalf of the estate; following Morjaria v Abdalla he needed an ad litem grant under paragraph 14 of the Fifth Schedule. Without locus, the suit was a nullity. Nonetheless, the court went on to hold that no trust was proved: the 1960 contract was oral, its terms unknown, and the Plaintiff was barely 4 years old at the time. No objection was raised during the 1968 land adjudication, so the adjudication register became final and the Defendants were validly registered through due process. The claim, first raised in 2002/2003, was also statute barred, the Defendants' interest having crystallized in 1968. The counterclaim failed too: special damages of Kshs. 329,870 were unproven and no trespass was proved. Both suit and counterclaim were dismissed with each party bearing their own costs.

Key legal issues

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01

Locus standi of the Plaintiff

Holding

The Plaintiff lacked capacity to sue; his limited grant ad colligenda bona did not entitle him to institute the suit on behalf of the deceased's estate.

Reasoning

The Plaintiff relied on a limited grant ad colligenda bona endorsed only for collecting and preserving the estate. Citing Morjaria v Abdalla, the court held such a grant cannot be used for representation in a suit; an ad litem grant under paragraph 14 of the Fifth Schedule was required. Without locus, the suit is a nullity for want of a competent party.

p. 3
02

Whether the Defendants hold the suit property in trust for the Plaintiff

Holding

No trust, customary or otherwise, was created or proved; the Defendants were validly registered following land adjudication.

Reasoning

No formal agreement on the 1960 sale was produced, and the Plaintiff was about 4 years old at the time of the contract. The Chief's Baraza minutes were unintelligible and the elders lacked jurisdiction over title. No objection was raised during adjudication, so the register became final and registration flowed from the purchase.

p. 5
03

Whether the suit is statute barred

Holding

Yes; the Defendants' interest crystallized upon adjudication in 1968 and the Plaintiff did not sue within 12 years.

Reasoning

The Defendants were adjudicated as owners on 9th March 1968 and the register opened in 1970. Any cause of action accrued then, and the Plaintiff waited over 40 years, raising the claim only in 2002/2003. The suit is barred by the Limitation of Actions Act.

p. 5
04

The Defendants' counterclaim for trespass damages

Holding

Both special and general damages claims failed for want of proof.

Reasoning

Special damages of Kshs. 329,870 was not specifically proved. Though general damages for trespass require no proof of damage once trespass is proved, the court found no proof of trespass, as the Defendants had occupied and utilised the land since 1960 without interference.

p. 5

Legal principles established

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  • A grant of letters of administration ad colligenda bona does not confer capacity to institute an action on behalf of a deceased's estate; an ad litem grant under paragraph 14 of the Fifth Schedule to the Law of Succession Act is required.
  • Where no objection is raised under the Land Adjudication Act, the adjudication register becomes final and the persons registered as owners are validly registered through due process.
  • Limitation periods do not apply to actions by a beneficiary under a trust, but proof of the existence of a trust is a prerequisite.
  • Special damages must be specifically pleaded and proved.

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Defendants' counterclaim is dismissed
  3. 3.Each party to bear their own costs of the suit and the counterclaim

Authorities

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Legislation

  • Law of Succession Act, Cap 160 Laws of KenyaSection 67(1); paragraph 14 of the Fifth Schedule
  • Land Adjudication Act, Cap 284 Laws of KenyaSection 26(1) and (2); Section 29(1)
  • Land Registration Act of 2012Section 28(b) and (c)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 20(1)
  • Land Disputes Tribunal Act of 1990Section 3(1)

Cases cited (2)

  • Morjaria -vs- Abdalla
    [1984] KLR 490
  • Alfred Njau & Others -vs- City Council of Nairobi
    [1982-88] 1 KAR 229
Jurisdiction invoked
Original civil jurisdiction of the High Court over a land dispute (specific provision not cited in the judgment)

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, "Samuel Nyankanga Areri v Francis Omundi Gwako & another [2019] KEELC 2935 (KLR)", Case Analysis (2019). Case No 1249 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2935/eng@2019-06-14

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