Edward Muchiri(Suing as the Administrator to the Estate of Nelson Muchiri Githinji) v Christopher Njoroge Komu(being sued as the Administrator of the Estate of Komu Kiarie) [2021] KEELC 1215 (KLR)
The bottom line
#A Nairobi court protected a family's 50-year occupation of Dagoretti land, ruling an unsigned 1966 sale agreement and long possession can ground an adverse possession claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is an abuse of court process on account of the earlier HCCC No. 1803 of 1995
The court declined to find the suit an abuse of process because the pleadings of the earlier suit were not produced, so it could not compare what was sought then with what is sought now.
Although the existence of HCCC No. 1803 of 1995 was undisputed and it was alleged to have been dismissed for want of prosecution in 2001, no pleadings or proceedings from that suit were placed before the court. Without knowing the precise nature of and relief sought in the earlier suit, the court could not apply the conjunctive elements of res judicata set out in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd. It therefore declined to strike out the suit as an abuse of process.
Whether the unsigned 1966 sale agreement offends Section 3(3) of the Law of Contract Act
Section 3(3) does not apply to contracts concluded before its 2003 commencement; part performance of the contract excuses want of writing or signature.
Relying on Peter Mbiri Michuki v Samuel Mugo Michuki, the court held that the signature and attestation requirement in Section 3(3) came into effect in 2003 and is not retrospective. Where a purchaser took and continued possession in part performance of a pre-2003 contract, whether oral or written, the absence of signature is immaterial.
Whether purchase of land is inconsistent with a claim of adverse possession
No; a purchaser in possession after paying the purchase price may claim adverse possession, though whether this suit fits that scenario is a matter for trial.
Counsel for the Defendant argued one cannot simultaneously claim to have bought land and claim adverse possession. The court rejected this, citing Public Trustee v Wanduru as endorsed in Peter Mbiri Michuki: adverse possession runs from payment of the purchase price where the purchaser takes possession. The court, however, reserved final determination of that question for trial.
Whether the Plaintiff met the Giella v Cassman Brown threshold for interim relief
The Plaintiff established a prima facie case with chances of success and would suffer irreparable damage absent preservation, warranting an injunction.
Applying Giella v Cassman Brown and Nguruman Limited v Jan Bonde Nielsen sequentially, the court found the estate's over fifty years of open, continuous and uninterrupted occupation of a portion of the suit property denoted an interest needing protection. Following Margaret Njeri Muiruri v Bank of Baroda, land disputes evoke emotions and damages would not adequately compensate, so the balance favoured an injunction preserving the occupied portion pending trial.
Legal principles established
#- Section 3(3) of the Law of Contract Act came into effect in 2003 and does not apply to oral or unsigned contracts for the sale of land concluded before that date; the proviso preserves contracts coupled with part performance.
- A purchaser in possession after payment of the purchase price may found a claim in adverse possession, the limitation period running from payment of the purchase price.
- Dismissal of a former suit for want of prosecution does not by itself establish res judicata where the pleadings and nature of the former suit are not before the court.
Court orders
#- 1.Pending the hearing and determination of this suit, an order of injunction restraining the Defendant whether by himself or representatives, servants, agents, and/or assigns from howsoever selling, alienating, trespassing onto, and/or in any other manner whatsoever interfering with or otherwise dealing with the portion of the property known as DAGORETTI/KANGEMI T.251 currently occupied by the Plaintiff
- 2.Costs in the cause
- Jurisdiction invoked
- Order 37 Rule 7 of the Civil Procedure Rules and Sections 7 & 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mulwa & 21 others v Munyae & 10 others & another (Environment & Land Case 158 of 2017) [2023] KEELC 648 (KLR)[2023] KEELC 648 (KLR)13 Feb 2023
- Mulwa & 21 others v Munyae & 10 others & another (Environment & Land Case 158 of 2017) [2023] KEELC 648 (KLR)[2023] KEELC 648 (KLR)13 Feb 2023
Cite this brief
#Cite this brief
Caselaw, "Edward Muchiri(Suing as the Administrator to the Estate of Nelson Muchiri Githinji) v Christopher Njoroge Komu(being sued as the Administrator of the Estate of Komu Kiarie) [2021] KEELC 1215 (KLR)", Case Analysis (2021). Originating Summons dated 30th September 2019 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1215/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.