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ELCAllowedOriginating Summons (not stated in judgment)· [2019] KEELC 3582 (KLR)

Phyllis Wanjiru Kamau v Wilson Gichuhi Gachagwe & 2 others [2019] KEELC 3582 (KLR)

Environment and Land Court
2 May 2019
MLMbugua Lucy
3,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court declared a woman who occupied land for 50 years its rightful owner, even though the registered owner died decades ago and succession was pending.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons under sections 7 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules claiming land parcel Lari/Bathi/T.110, registered in the name of Gichuhi Gathunga (deceased since the 1960s), by adverse possession. She deponed that she entered the land on 2 June 1969, has occupied it openly, exclusively, peacefully and without interruption for decades, raising seven children there and carrying out extensive developments including a semi-permanent house, fencing and a cow pen. The 1st and 2nd defendants, grandsons of the deceased, opposed the suit, contending that the defendants had no locus standi since none held a valid grant; the 3rd defendant's grant was under application for revocation and the suit land was not included in it, and that adverse possession lies only against a registered owner. The 3rd defendant, who held the confirmed grant, effectively admitted the plaintiff's claim. The court held it had jurisdiction under Article 162(2) and section 13 of the Environment and Land Court Act despite the pending succession cause, the probate court's function being distinct. Relying on section 16 of the Limitation of Actions Act and case law including Mate Gitabi and Karuntimi Raiji, it held that adverse possession lies against a deceased's estate and his heirs. The plaintiff's 50-year unchallenged occupation extinguished the estate's title. The court declared the plaintiff owner by adverse possession, ordered her registration as sole proprietor, authorised execution of the requisite documents, dispensed with land control board consent, discharged any subsisting cautions or inhibitions, and ordered each party to bear their own costs.

Key legal issues

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01

Jurisdiction of the ELC where there is a pending succession cause

Holding

The ELC has jurisdiction; the probate and ELC courts have distinct jurisdictions.

Reasoning

The court held that the probate court's function is limited to collection, preservation and distribution of the estate, while disputes as to ownership or title to land fall within the ELC's constitutional and statutory mandate under Article 162(2) and section 13 of the ELC Act. Claims to estate land may be made by persons who are not heirs, and the pendency of a succession cause does not oust ELC jurisdiction.

p. 3
02

Adverse possession against a deceased's estate

Holding

Such a claim is competent; limitation runs and rights acquired by limitation are overriding interests preserved by statute.

Reasoning

Relying on section 16 of the Limitation of Actions Act and case law including Mate Gitabi and Karuntimi Raiji, the court held that an administrator claims as if there were no interval between death and the grant, and rights acquired under limitation statutes survive against estates and heirs. The plaintiff's occupation since 1969 had dispossessed the estate long before any grant issued.

p. 4
03

Whether the 1st and 2nd defendants were properly sued without a grant

Holding

It was not fatal to sue them as they presented themselves as heirs and potential legal representatives.

Reasoning

Although they held no grant, the 1st and 2nd defendants had filed for revocation of the grant and defended the suit on the basis of their entitlement as heirs. Given the deceased died in the 1960s and they never asserted rights to prevent dispossession, the court found it was not fatal to sue them alongside the 3rd defendant who held the grant.

p. 4
04

Whether the plaintiff proved adverse possession

Holding

Yes; her occupation since 1969 was actual, open, exclusive, peaceful and uninterrupted for about 50 years.

Reasoning

The plaintiff entered the land in 1969, resided there with her children, developed it, and was never evicted or sued. This evidence was uncontroverted, and the 3rd defendant effectively admitted the claim. No defendant gave her permission to occupy; accordingly the elements of adverse possession were established.

p. 5

Legal principles established

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  • Adverse possession requires actual, open, continuous, exclusive, peaceful and uninterrupted occupation for 12 years without the owner's consent
  • The Environment and Land Court, not the probate court, has jurisdiction to determine claims of ownership of land claimed to belong to a deceased person's estate
  • A claim of adverse possession may be sustained against the estate of a deceased person and against heirs who are not yet holders of the grant
  • The title of a registered proprietor is extinguished in favour of an adverse possessor at the expiry of 12 years of adverse possession

Court orders

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  1. 1.A declaration that the plaintiff has acquired ownership of L.R. No. Lari/Bathi/T.110 through adverse possession
  2. 2.An order for the plaintiff to be registered as the sole proprietor of L.R. No. Lari/Bathi/T.110
  3. 3.The legal representative of the estate of Gachuhi Gathunga or the Deputy Registrar of the court is authorized to sign all requisite documents to facilitate the registration
  4. 4.The consent of the land control board is dispensed with in the implementation of the judgment
  5. 5.Any subsisting order of inhibition, injunction, caution or restriction over land parcel Lari/Bathi/T.110 is discharged
  6. 6.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 13, 16, 17, 38
  • Civil Procedure RulesOrder 37 Rules 1 and 7; Order XXXVI rule 1
  • Constitution of Kenya, 2010Article 162(2)
  • Environment and Land Court Actsection 13
  • Law of Succession Actsections 76, 82
  • Probate and Administration Rulesrule 41(3)
  • Registered Lands Actsection 30(f)
  • Law Reform Actsection 2

Cases cited (19)

  • Isaya Masira MManji vs Daniel Omwoyo & Another
    [2017] eKLR
  • Rhoda & 4 others vs Kitole Mutinda & another
    MKS HCC 362/2011
  • Sophie Wanjiku John vs Jane Mwihaki Kimani
    [2013] eKLR
  • Chevron (K) Limited vs Harrison Charo Wa Shutu
    [2016]
  • Peter Kamau Njau vs Emmanuel Charo Tinga
    [2016] eKLR
  • Samuel Miki Waweru vs Jane Njeri Richu
    [2007] eKLR
  • Francis Gitonga Macharia vs Murimi Waithaka
    [1998] eKLR
  • Fauzia Tariq Abukar Zubedi vs Athuman Hassan Awadh & 3 others
    (2016) eKLR
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • In re Estate of Alice Mumbua Mutua (Deceased)
    [2017] eKLR
  • Priscilla Ndubi & Another vs. Gerishon Gatobu Mbui
    Meru H.C.C. Succession Cause No. 720 of 2013
  • Peter Mbiri Michuki vs. Samuel Mugo Michuki
    Civil Appeal No. 22 of 2013
  • Mate Gitabi vs. Jane Kaburu Muga and 3 Others
    Nyeri Court of Appeal Civil Case No. 43 of 2015
  • Peter Gichuki Wanjohi vs. Julia Mumbi Muturi
    Nyeri ELC No. 211 of 2013
  • Karuntimi Raiji v. M'Makinya M'itunga
    (2013) eKLR
  • Mary Muthoni Kathu vs. Fredrick Kigo Mbogo and another
    ELC No. 386 of 2013, Kerugoya
  • Mary Mbaisi
    CA Civil Appeal no. 27 of 2013 Kisumu
  • Kahindi Ngala Mwagandi vs. Mtana Lewa
    ELC No. 108 of 2011 Malindi
  • Adnam vs. Earl of Sandwich
    (1877) 2 QBD 485
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 and section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Phyllis Wanjiru Kamau v Wilson Gichuhi Gachagwe & 2 others [2019] KEELC 3582 (KLR)", Case Analysis (2019). Originating Summons (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3582/eng@2019-05-02

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