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ELCDismissedELC 01 of 2016· [2020] KEELC 2323 (KLR)

Washington Odiyo Aboge v Francis Obiny Ateng [2020] KEELC 2323 (KLR)

Environment and Land Court
22 May 2020
AOA.O. Ombwayo
1,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court threw out a family land claim filed 29 years too late by a plaintiff who lacked proper authority to represent the deceased's estate.

What this practically means

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Executive summary

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The plaintiff, Washington Odiyo Aboge, sued Francis Obiny Ateng claiming on behalf of the estate of the deceased Nunda Aboge (also known as Elias Nunda Aboge a.k.a Nunda Aboge Kuwuor) over land parcel WAWIDHI/ALL/AYUCHA/416. He alleged the parties shared no common family tree, that the defendant had the parcel registered in his name by 1989 (registered 18/2/1991), sub-divided it and caused mental and physical torture to the plaintiff's family, and he sought eviction of the defendant, deregistration and costs. The defendant denied the allegations, asserted he held indefeasible title having won the land on appeal before a land appeals tribunal (having granted the deceased's family only the burial portion), pleaded adverse possession in the alternative, and raised a limitation objection, seeking dismissal with costs. At trial, the plaintiff's witnesses gave largely hearsay evidence about the land having belonged to Aboge Owuor; the defendant produced tribunal appeal proceedings, and DW2, John Okoth Nunda, son of the deceased, asserted he held the full grant over the estate. The court held that the plaintiff's limited grant ad litem was a nullity since DW2 already held an earlier full grant, so the plaintiff lacked capacity to claim for the estate. It further held the claim statute barred under section 7 of the Limitation of Actions Act, the suit having been lodged about 29 years after registration. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Plaintiff's capacity to sue on behalf of the estate

Holding

The plaintiff lacked capacity; the limited grant ad litem was a nullity because DW2 held an earlier full grant over the same estate

Reasoning

DW2, John Okoth Nunda, son of the deceased, produced a full grant of letters of administration issued earlier than the plaintiff's limited grant ad litem. A person holding only a limited grant cannot claim on behalf of an estate where a full grant has already been issued to another administrator. The plaintiff therefore had no locus standi to bring the suit on behalf of the estate of Nunda Kuwuor.

p. 2
02

Limitation of actions

Holding

The claim was statute barred, having been lodged about 29 years after the defendant was registered as proprietor, far beyond the 12-year limit

Reasoning

The defendant was registered as proprietor of the suit land on 18/2/1991 and the suit was filed on 4/1/2016, some 29 years later. Section 7 of the Limitation of Actions Act bars an action to recover land after twelve years from when the right of action accrued. The person through whom the plaintiff claimed, Nunda Kuwuor Aboge, never claimed the land from the defendant, so the suit was stale and statute barred.

p. 2

Legal principles established

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  • An action to recover land may not be brought after twelve years from the date the right of action accrued (section 7, Limitation of Actions Act)
  • A limited grant of letters of administration ad litem is a nullity where a full grant has already been issued to another administrator of the same estate

Court orders

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  1. 1.The suit is dismissed for being statute barred and for the plaintiff's lack of capacity to claim on behalf of Nunda Aboge Kuwuor
  2. 2.Costs awarded to the defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 7
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning title to land); judgment does not state the provision expressly

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, "Washington Odiyo Aboge v Francis Obiny Ateng [2020] KEELC 2323 (KLR)", Case Analysis (2020). ELC 01 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2323/eng@2020-05-22

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