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ELCAllowedOriginating Summons dated 30th September 2019 (Nairobi)· [2021] KEELC 1215 (KLR)

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)

Environment and Land Court
4 November 2021
4,489 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, administrator of the estate of Nelson Muchiri Githinji (deceased), brought an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Sections 7 and 38 of the Limitation of Actions Act seeking a declaration that the deceased was entitled to half of DAGORETTI/KANGEMI T.251 by adverse possession, together with a contemporaneous Notice of Motion seeking conservatory orders over the portion he occupies. The Plaintiff pleaded a 1966 sale agreement between the deceased and Komu Kiarie (deceased), possession since 1966, cautions registered in 1987 and 1995, and an earlier suit, HCCC No. 1803 of 1995, whose fate could not be ascertained. The Defendant denied any sale, alleging the agreement was fraudulently crafted, that occupation was permissive and temporary, and that the earlier suit was dismissed for want of prosecution in 2001, rendering the present suit an abuse of process. The court framed two issues: abuse of process and whether the Plaintiff met the threshold for the orders sought. On the first, it held that without the earlier pleadings it could not apply the conjunctive elements of res judicata and declined to find an abuse. On the second, applying Giella v Cassman Brown and Nguruman, it found a prima facie case: Section 3(3) of the Law of Contract Act, effective 2003, did not invalidate a pre-2003 agreement coupled with part performance, and a purchaser in possession may claim adverse possession, a question reserved for trial. The occupation of over fifty years denoted an interest warranting protection, and damages would not adequately compensate. The court granted an injunction restraining the Defendant from selling, alienating or interfering with the occupied portion pending hearing of the suit, with costs in the cause.

Key legal issues

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01

Whether the suit is an abuse of court process on account of the earlier HCCC No. 1803 of 1995

Holding

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.

Reasoning

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.

p. 3
02

Whether the unsigned 1966 sale agreement offends Section 3(3) of the Law of Contract Act

Holding

Section 3(3) does not apply to contracts concluded before its 2003 commencement; part performance of the contract excuses want of writing or signature.

Reasoning

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.

p. 5
03

Whether purchase of land is inconsistent with a claim of adverse possession

Holding

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.

Reasoning

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.

p. 5
04

Whether the Plaintiff met the Giella v Cassman Brown threshold for interim relief

Holding

The Plaintiff established a prima facie case with chances of success and would suffer irreparable damage absent preservation, warranting an injunction.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions ActSections 7 & 38(1) and (2)
  • Civil Procedure ActSection 7
  • Law of Contract ActSection 3(3) and proviso; Section 3(7)

Cases cited (12)

  • George Orango vs Liewa Jagalo & 3 Others
    (2010) eKLR
  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR
  • Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd
    [2017] eKLR
  • Giella vs Cassman Brown
    [1973] EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Ors
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Richard Wefwafwa Songoi vs Ben Munyifwa Songoi
    [2020] eKLR
  • Mbira vs Gachuhi
    (2002) IEALR 137
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Public Trustee v Wanduru
    (1984) KLR 314
  • Margaret Njeri Muiruri (Being the Administrator of the Estate of Joseph Muiruri (Deceased)) v Bank of Baroda (Kenya) Ltd
    [2001] eKLR
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules and Sections 7 & 38 of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.