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ELCStruck OutELC Case No. 259 of 2016· [2020] KEELC 288 (KLR)

BOM of Vikutsa Primary School v Moses Abwoba & 5 others [2020] KEELC 288 (KLR)

Environment and Land Court
16 December 2020
1,528 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a school's land claim because the man bringing it had no authority to sue, without even examining the evidence.

What this practically means

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Executive summary

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The Chairman of the Board of Management of Vikutsa Primary School sued six defendants claiming 11 acres of land parcel Kakamega/Ileho/726 by adverse possession, seeking extinguishment of the respondents' rights, registration of the applicant as owner under section 38 of the Limitation of Actions Act, execution of transfer documents, and costs. Peter Marema (PW1) testified that Zedekiah Amuhanda donated 11 acres to start a school in 1973 and showed the land in 1974, corroborated by PW2 William Asalikha. The defendants opposed, stating they were registered joint proprietors in December 2013 pursuant to a confirmed grant in Kakamega High Court Succession Cause No. 483 of 2010, that Moses Abwoba was improperly joined, and that a prior judgment of the court delivered on 7 December 2016 had dismissed the plaintiff's claim for want of proof and lack of locus standi - a decision unappealed - making the suit an abuse of process. The court, N.A. Matheka J, treated locus standi as a threshold jurisdictional issue to be resolved before the merits. Relying on Alfred Njau and Mumo Matemu, the court found Peter Marema held no position in the school, that no board member testified, and that his lack of standing had already been judicially determined in the succession cause. The court therefore declined to examine the merits of the adverse possession claim, struck out the suit, and made no orders as to costs.

Key legal issues

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01

Locus standi of the plaintiff through Peter Marema

Holding

Peter Marema has no locus standi to claim the suit land either personally or through the school; he holds no position in the school, no board member testified, and an unappealed prior judgment had found the same

Reasoning

The court prioritised the locus standi objection over the merits. Peter Marema, who swore the supporting affidavit and testified as PW1, held no position in the school's board of management, and no board member testified. The same Peter Marema had been found in the judgment in Kakamega Succession Cause No. 483 of 2010 delivered on 7 December 2016 to lack locus standi, a decision never appealed. Filing the present suit instead of appealing amounted to an attempt to defeat that judgment.

p. 2
02

Whether the adverse possession claim should be determined on the merits

Holding

The court declined to determine the adverse possession claim once locus standi failed

Reasoning

Because the plaintiff's representative lacked locus standi, the court found it unnecessary to evaluate the evidence of the alleged 1973 donation by Zedekiah Amuhanda or the alleged occupation since 1973. The claim was struck out as unmerited without reaching the factual merits of continuous, peaceful and open occupation for 12 years.

p. 2

Legal principles established

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  • Locus standi is a point of law touching on the jurisdiction of the court and should be resolved at the earliest opportunity
  • A person with no position in a plaintiff entity and who was previously found to lack locus standi in an unappealed decision cannot prosecute a fresh claim on behalf of that entity

Court orders

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  1. 1.The suit is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions Actsection 38

Cases cited (2)

  • Alfred Njau & 5 others vs. City Council of Nairobi
    (1983) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliances & 5 Others
    (2014) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - implied by the court's jurisdiction over land; the judgment does not expressly cite a provision

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, "BOM of Vikutsa Primary School v Moses Abwoba & 5 others [2020] KEELC 288 (KLR)", Case Analysis (2020). ELC Case No. 259 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/288/eng@2020-12-16

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