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ELCStruck OutOriginating Summons dated 3rd March 2016 (Environment and Land Court)· [2019] KEELC 4789 (KLR)

Humphrey Mugo Kabute v Susan Gatundo Murage & 4 others [2019] KEELC 4789 (KLR)

Environment and Land Court
25 January 2019
ECE.C. Cherono
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an adverse possession claim because the deceased's estate had already been distributed to beneficiaries, leaving nothing to claim.

What this practically means

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Executive summary

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The plaintiff, Humphrey Mugo Kabute, filed an Originating Summons dated 3rd March 2016 seeking to be registered as owner of a ¾ acre portion of land parcel MUTIRA/KATHARE/273 by adverse possession, claiming he entered the land in 1964 with permission of the late registered owner, Munene Kabute, developed it, and buried family members there. Together with the summons he sought an injunction restraining sale, transfer, alienation or partition of the property, and status quo orders were issued on 15th March 2016. The defendants, acting in person and as administrators of the deceased's estate pursuant to letters of administration issued on 3rd April 2013 in Succession Cause No. 49/2012, opposed the claim, asserting the plaintiff entered without permission and should be evicted. They raised a Notice of Preliminary Objection dated 21st March 2016 on grounds of res judicata and prior distribution of the estate to eleven beneficiaries. The court held that although the succession court (Limo J, judgment of 28th October 2015) had directed the plaintiff to file separate proceedings in the Environment and Land Court, it nonetheless distributed the entire estate, including the suit property, before he could ventilate his claim. It found it would be futile to determine the suit on the merits and upheld the Preliminary Objection on ground No. 2, striking out the plaintiff's suit with each party bearing their own costs.

Key legal issues

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01

Whether the plaintiff's adverse possession claim survived the distribution of the estate in Succession Cause No. 49/2012

Holding

The suit was struck out because the estate had already been distributed and no share was awarded to the plaintiff

Reasoning

The succession court (Limo J) had directed the plaintiff to file separate proceedings in the Environment and Land Court, but nevertheless distributed the entire estate, including the suit property, among eleven beneficiaries before he could ventilate his claim. The court found it futile and practically impossible to grant adverse possession over a ¾ acre portion of property already distributed to beneficiaries who each hold defined shares.

p. 3

Legal principles established

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  • Where a Preliminary Objection is raised, the court should address the preliminary issue before taking any step in the proceedings
  • A claim in adverse possession cannot be sustained on its merits where the estate has already been distributed in succession proceedings

Court orders

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  1. 1.The Notice of Preliminary Objection dated 21st March 2016 on ground No. 2 is upheld
  2. 2.The plaintiff's suit is struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Limitation of Actions Act Cap 22 Laws of KenyaSections 7, 13 & 17
  • Constitution of KenyaArticle 162(2)

Cases cited (3)

  • KASUVE VS MWAANI INVESTMENTS AND 4 OTHERS
    (2004) 1 K.L.R. 184
  • SAMUEL KIHAMBA VS MARY MBAISI
    CA No. 27 of 2013 (KISUMU)
  • GITHU VS NDEETE
    (1984) K.L.R 776
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court)

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, "Humphrey Mugo Kabute v Susan Gatundo Murage & 4 others [2019] KEELC 4789 (KLR)", Case Analysis (2019). Originating Summons dated 3rd March 2016 (Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4789/eng@2019-01-25

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