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ELCStruck OutELC suit by originating summons dated 16th April, 2019 (number not stated in judgment)· [2020] KEELC 3190 (KLR)

Esther Cherop Busienei v Peter Momoen Langat [2020] KEELC 3190 (KLR)

Environment and Land Court
10 March 2020
AKA. K. Kaniaru
1,433 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 Kericho court struck out a land claim because the claimant ignored a prior court order requiring her to pay costs before filing a new suit.

What this practically means

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Executive summary

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The respondent raised a two-limbed preliminary objection against the applicant's originating summons claiming half of Land Parcel No. Kericho/Kipsonoi/Settlement Scheme/87 by adverse possession or trust. First, he contended that the applicant, claiming through her deceased father-in-law Momoen Langat, lacked capacity to sue without a grant of letters of administration. Second, he argued the suit contravened a court order of 26/11/2016 in HCC No. 93 of 2009 (O.S) directing that any party filing a related suit first pay the costs of the earlier, withdrawn suit. On the first limb, the court held that an adverse possession claim is personal to the claimant, rests on long, open, uninterrupted occupation adverse to the titled owner, and requires no grant - particularly as the claim is against a living registered owner, not a deceased person. The alternative trust claim was secondary and did not alter that conclusion; this limb was rejected. On the second limb, the court held that a court order is a legal order capable of grounding a preliminary objection, and that the applicant should either have complied with the costs directive or sought leave with justification before filing. Having rushed to court 'as if the court order didn't exist', the applicant could not be heard. The court upheld the objection on the second ground, struck out the suit with costs, and directed the applicant to pay the costs of the earlier suit before being heard. Judgment delivered at Kericho on 10th March 2020 by A. K. Kaniaru, J.

Key legal issues

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01

Whether a grant of letters of administration was necessary for the applicant's claim

Holding

First limb of the objection fails: the adverse possession claim is personal and made against a living registered owner, not a deceased estate, so no grant is required

Reasoning

The court held that adverse possession rests on long, open, uninterrupted possession adverse to the titled owner and is personal to the claimant. The claim here is against a living person, not a deceased one. The alternative trust claim is secondary; striking out the suit for want of the order would also terminate the adverse possession claim, which needs no grant.

p. 2
02

Whether filing suit without first paying costs of an earlier suit, as directed, was fatal

Holding

Yes - the second limb succeeds and the suit is struck out

Reasoning

A court order is a legal order capable of grounding a preliminary objection. The applicant admitted the order but filed suit without complying. Had she wished to proceed, she should have first sought leave and justified non-compliance. Courts routinely deny audience to litigants who disregard such pre-conditions.

p. 2

Legal principles established

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  • A claim of adverse possession is personal to the claimant and requires no grant of letters of administration
  • A court order is a legal order and a preliminary objection may be founded on non-compliance with it; a litigant must comply with, or seek leave of court before departing from, such an order

Court orders

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  1. 1.The preliminary objection is upheld on the second ground
  2. 2.The applicant's suit is struck out with costs

Authorities

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Legislation

  • Limitation of Actions Actnot specified (referred to as the Statute/Law of Limitations of Actions)

Cases cited (3)

  • TROUSTINIK INTERNATIONAL UNION & ANOTHER VS. JANE MBEYU & ANOTHER
    CA NO. 145 OF 1990 (1993 EKLR)
  • TIMOTHY MUGO KARANI VS KITHAKA IKUTHI & OTHERS
    ELC NO. 54 OF 2014, EMBU (J.R)
  • MUKISA BISCUIT COMPANY VS WESTEND DISTRIBUTORS LIMITED
    (1969) EA 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (adverse possession/trust); no specific provision cited

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, "Esther Cherop Busienei v Peter Momoen Langat [2020] KEELC 3190 (KLR)", Case Analysis (2020). ELC suit by originating summons dated 16th April, 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3190/eng@2020-03-10

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