Hassan Swaleh Mohsin & 2 others v Abdul Karuri (Sued on Their Individual Capacities) & 2 others [2021] KEELC 1185 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Locus standi to sue on behalf of a deceased's estate
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
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.
Whether occupation was permissive or adverse
The Plaintiffs' occupation was permissive, founded on a landlord-tenant relationship with the 4th Defendant, and therefore could not found adverse possession
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.
Effect of eviction on an adverse possession claim
Having been evicted and no longer in occupation, the Plaintiffs could no longer pursue a claim premised on continuity of possession
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.
Availability of damages under an Originating Summons
General, aggravated and exemplary damages cannot be awarded on an Originating Summons; such claims must be brought by plaint, counter-claim or constitutional petition
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.
Legal principles established
#- 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
#- 1.The Originating Summons dated 13th July 2015 be and is hereby Dismissed
- 2.Either party shall bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.