Derick Masini Onami v Josam Ibwana [2021] KEELC 104 (KLR)

The court applied the Mukisa Biscuit test, which requires a preliminary objection to be a pure point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit, and argued on the assumption that all facts pleaded by the opposite side are correct. The objection rested on Section 7 of the Civil Procedure Act and sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act, so it met the threshold.

Applying the elements in John Florence Maritime Services, the court held that the ruling of Justice C. Kariuki in the succession cause was not final as far as the adverse possession claim was concerned, since the court had expressly given the plaintiff leeway to file such a claim in the Environment and Land Court, the court with jurisdiction over the subject matter. Hence the claim was never finally adjudicated by a court with jurisdiction.

Relying on section 16 of the Limitation of Actions Act, section 30(f) of the repealed Registered Land Act (now section 28(h) of the Land Registration Act) and section 2(1) of the Law Reform Act, the court held that a claim of adverse possession survives the death of the title holder and time continues to run against the estate. The plaintiff claimed to have entered the land in 1995, so time had run well beyond twelve years before suit.

The abuse-of-process complaint was premised on the suit being res judicata and premature, both of which findings failed. Since the suit was neither res judicata nor prematurely filed, the foundation for the abuse argument collapsed and the court found no abuse of process in filing the Originating Summons.