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ELCDismissedOriginating Summons dated 13th July 2015· [2021] KEELC 1185 (KLR)

Hassan Swaleh Mohsin & 2 others v Abdul Karuri (Sued on Their Individual Capacities) & 2 others [2021] KEELC 1185 (KLR)

Environment and Land Court
28 October 2021
5,642 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family's adverse possession claim because they sued without letters of administration and their long occupation was actually a paying tenancy.

What this practically means

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Executive summary

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Three brothers, sons of the late Swaleh Mohsin, brought an Originating Summons dated 13th July 2015 claiming adverse possession of a 100ft by 100ft portion of L.R. No. 209/2378, Pumwani, Nairobi, where their father had built and occupied an eight-roomed house from 1936, paying rent of Kshs. 2 to the 4th Defendant Mosque. They sought declarations of ownership, registration, a permanent injunction, and general damages of Kshs. 2,000,000 and aggravated damages of Kshs. 500,000 for trespass and demolition following the June 2015 Gikomba fire and subsequent demolition of the house. The Defendants, who filed a Replying Affidavit but neither attended trial nor filed submissions, asserted that the 4th Defendant was the registered owner of L.R. No. 209/2378/1 and that the Plaintiffs' occupation was that of tenants, as acknowledged in their advocate's letter of 3rd October 2012. At trial only the Plaintiffs testified. The court framed four issues and found: (1) the suit, mounted on behalf of the estate of Swaleh Mohsin without letters of administration, was incompetent and the Plaintiffs lacked locus standi; (2) occupation was permissive under a landlord-tenant relationship and thus not adverse; (3) the Plaintiffs' eviction in June 2015 terminated any possession, dissipating the adverse possession claim; and (4) general, aggravated and exemplary damages cannot be claimed by Originating Summons under Order 37 of the Civil Procedure Rules. The Originating Summons was dismissed, with each party bearing their own costs given the Defendants' non-participation.

Key legal issues

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01

Locus standi to sue on behalf of a deceased's estate

Holding

The Plaintiffs lacked locus standi because they had not obtained letters of administration over the estate of Swaleh Mohsin, and the suit was incompetent at inception

Reasoning

The claim traced itself to the entry upon and occupation of the suit property by Swaleh Mohsin in 1936 and was expressly mounted on behalf of his estate and family. Section 82 of the Law of Succession Act vests powers of enforcement in personal representatives, and only a grant of letters of administration confers capacity to sue for the estate. No grant was exhibited, so the Plaintiffs, styled as heads of the family, could not sustain the suit.

p. 5
02

Whether occupation was permissive or adverse

Holding

The Plaintiffs' occupation was permissive, founded on a landlord-tenant relationship with the 4th Defendant, and therefore could not found adverse possession

Reasoning

The Plaintiffs admitted their father paid rent of Kshs. 2 to the Mosque and produced a rent book evidencing tenancy. Their own advocate's letter of 3rd October 2012 restated the landlord-tenant relationship and protested a rent increase; their attempt to disown that letter failed since no complaint was made against the advocate. No evidence showed they renounced the tenancy and held hostilely.

p. 6
03

Effect of eviction on an adverse possession claim

Holding

Having been evicted and no longer in occupation, the Plaintiffs could no longer pursue a claim premised on continuity of possession

Reasoning

The Plaintiffs admitted the house burnt down in June 2015, that the Defendants demolished the remnants and took the materials, and that the Defendants were now exclusively in possession. Adverse possession requires continuity and publicity of occupation; once possession was interrupted and terminated, the doctrine of nec vi nec clam nec precario ceased to apply and the claim dissipated.

p. 7
04

Availability of damages under an Originating Summons

Holding

General, aggravated and exemplary damages cannot be awarded on an Originating Summons; such claims must be brought by plaint, counter-claim or constitutional petition

Reasoning

Order 37 of the Civil Procedure Rules circumscribes the use and reliefs of Originating Summons and does not provide for damages claims. Following Kenya Commercial Bank Ltd vs Osede, the Court of Appeal held there was no power to award damages on an originating summons. The quantified claims of Kshs. 2,000,000 and Kshs. 500,000 were therefore legally untenable.

p. 8

Legal principles established

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  • An administrator cannot sue on behalf of a deceased's estate before obtaining letters of administration; an action so filed is incompetent at inception
  • A claim for adverse possession cannot succeed where possession is held with the permission of the owner; time runs only from termination of the licence
  • Where an adverse possessor is evicted, the claim for adverse possession can no longer be pursued
  • An Originating Summons cannot anchor a claim for general, aggravated or exemplary damages

Court orders

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  1. 1.The Originating Summons dated 13th July 2015 be and is hereby Dismissed
  2. 2.Either party shall bear their own costs

Authorities

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Legislation

  • Law of Succession Act (Cap. 160)Section 82
  • Law of Succession Act (Cap. 160)Section 80(1) and 80(2) (as quoted in Virginia Edith Wambui Otieno vs Joash Ochieng Ouko)
  • Civil Procedure RulesOrder 37
  • Constitution of Kenya, 2010Article 23

Cases cited (12)

  • Virginia Edith Wambui Otieno vs Joash Ochieng Ouko
    [1987] eKLR
  • Trouistik International Ltd vs Jane Mbeyu & Another
    [1993] eKLR
  • Ingall v Moran
    [1944] 1 KB
  • Burns v Campbell
    [1952] KB 15
  • Wankford v Wankford
    [1702]
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Samuel Miki Waweru vs Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
  • Njuguna Ndatho & Another vs Masai Itumo & Another
    [2002] eKLR
  • Githu v Ndeete (Githua v Ndeete)
  • Muthoni v Wanduru
  • Kenya Commercial Bank Ltd vs Osede
    [1986] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment disputes); claim brought by Originating Summons under Order 37 of the Civil Procedure Rules

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, "Hassan Swaleh Mohsin & 2 others v Abdul Karuri (Sued on Their Individual Capacities) & 2 others [2021] KEELC 1185 (KLR)", Case Analysis (2021). Originating Summons dated 13th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1185/eng@2021-10-28

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