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ELCStruck OutELC OS No. 860 of 2019 (Originating Summons dated 26/07/2019, land parcel No. 860 Kiboko Settlement Scheme)· [2020] KEELC 2398 (KLR)

Mutyandia Kilonzo v John Masimbi Imundi & another [2020] KEELC 2398 (KLR)

Environment and Land Court
28 May 2020
CMC.G. Mbogo
586 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 landowner had died and the people sued had no letters of administration for the estate.

What this practically means

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Executive summary

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The Applicant filed an Originating Summons dated 26/07/2019 seeking a declaration that he had acquired a freehold interest in land parcel No. 860 Kiboko Settlement Scheme by adverse possession. The Respondents, said to be the deceased registered owner's son and grandson, filed a Preliminary Objection dated 30/09/2019 contending that the suit property was registered in the name of Naomi Imundi, now deceased; that no letters of administration had been obtained over her estate; and that they therefore lacked capacity to be sued, the suit also offending sections 45(1) and (2) of the Law of Succession Act. The Applicant, relying on the Thika ELC decision in Phyllis Wanjiru Kamau v Wilson Gichuhi Gachangwe, argued that an adverse possession claim survives the owner's death and lies against the estate. Mbogo J, canvassing the objection on written submissions, framed a single issue: whether the Preliminary Objection had merit. The court accepted that such claims survive death but held they must be brought against a duly appointed legal representative. Since neither Respondent held a grant and the Applicant produced no evidence of representation, the Respondents had no capacity to be sued and the suit would be an academic exercise. The court distinguished Phyllis Wanjiru because a defendant there held a confirmed grant. The Originating Summons was struck out with costs to the Respondents on 28 May 2020.

Key legal issues

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01

Capacity of respondents sued in their personal capacity where the registered owner is deceased

Holding

Respondents, who hold no grant of letters of administration, have no capacity to be sued on behalf of the deceased's estate; the suit is premature and academic.

Reasoning

The Applicant acknowledged the registered owner, Naomi Kamundi, is deceased but produced no title documents or death certificate, and exhibited nothing showing the Respondents are legal representatives. A suit against non-representatives cannot yield enforceable orders. The Phyllis Wanjiru authority is distinguishable because one defendant there held a confirmed grant.

p. 2

Legal principles established

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  • A claim for adverse possession survives the death of a registered owner but must be brought against a duly appointed legal representative of the estate.

Court orders

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  1. 1.Originating Summons struck out with costs to the Respondents

Authorities

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Legislation

  • Law of Succession Act, Cap 160section 45(1) and (2)

Cases cited (1)

  • Phyllis Wanjiru Kamau –vs- Wilson Gichuhi Gachangwe & 2 others
    (2019) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over adverse possession claims

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mutyandia Kilonzo v John Masimbi Imundi & another [2020] KEELC 2398 (KLR)", Case Analysis (2020). ELC OS No. 860 of 2019 (Originating Summons dated 26/07/2019, land parcel No. 860 Kiboko Settlement Scheme). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2398/eng@2020-05-28

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