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ELCDismissedELC Originating Summons dated 12/05/2020 (Murang'a)· [2021] KEELC 2792 (KLR)

John Kamande Ngugi v Peter Karanja Mwangi & another [2021] KEELC 2792 (KLR)

Environment and Land Court
17 June 2021
1,870 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court ruled that beneficiaries sued over an adverse possession claim cannot kill the case with a preliminary objection before evidence is heard.

What this practically means

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Executive summary

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The Applicant filed an Originating Summons dated 12/05/2020 claiming adverse possession over land parcel Loc 7/ICHAGAKI/645, registered in the name of the deceased Njeri Karanja. He contended he purchased the land from the registered proprietor and relied on an earlier Maragua Land Dispute Tribunal award adopted as a court order. The Respondents, beneficiaries of the estate who are not its legal representatives, raised a preliminary objection dated 18/9/2020 on three grounds: lack of locus standi to be sued, absence of a cause of action against them, and that the suit is frivolous, vexatious and an abuse of process. The court, J.G. Kemei J, directed the objection be determined first by written submissions. Applying the Mukisa Biscuits definition and the Supreme Court's guidance in IEBC v Jane Cheperenger, the court held the objection was not a pure point of law: determining ownership and occupation would require perusal of documents and evidence. Although the Respondents are admittedly not personal representatives, Order 1 Rule 9 of the Civil Procedure Rules prevents a suit from being defeated by misjoinder or nonjoinder. The court also found, following Peter Kim Baker v Sidi Katana Bongo, that occupation may be defended without letters of administration. The pleadings raised issues on the right to property deserving protection, and dismissal at the preliminary stage risked a miscarriage of justice. The preliminary objection was dismissed with costs to the Applicant on 17 June 2021 at Murang'a.

Key legal issues

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01

Whether the preliminary objection on locus standi is a pure point of law

Holding

It is not; determining ownership and occupation requires examination of documents and evidence

Reasoning

The court applied the Mukisa Biscuits definition and held that determining ownership of the property would require perusal of the documents provided by the Respondents, so the objection could not dispose of the suit without evidence. It therefore was not a pure point of law and was dismissed.

p. 2
02

Whether the suit is defeated by the misjoinder of the Respondents who are not legal representatives

Holding

No; under Order 1 Rule 9 the suit cannot be defeated by misjoinder or nonjoinder

Reasoning

The court noted the Respondents are admittedly not personal representatives of the deceased, but applied Order 1 Rule 9 of the Civil Procedure Rules, holding that the matter can be dealt with as regards the parties actually before it, and that dismissing the suit at the preliminary stage may cause a miscarriage of justice.

p. 2
03

Whether the suit is frivolous, vexatious and an abuse of process

Holding

It is not; the pleadings raise issues on the right to property that the court ought to protect

Reasoning

Adopting Munyao J's definition in the Nandi County Council case, the court found the pleadings neither lack legal foundation nor are meant to annoy. The Applicant appears to have a claim over the land and who occupies the claimed portion requires examination of facts and evidence.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law which assumes all facts pleaded are correct and does not require ascertainment of facts or exercise of discretion
  • No suit shall be defeated by reason of misjoinder or nonjoinder of parties
  • A preliminary objection should not be used as a sword to win a case destined to be resolved on the merits

Court orders

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  1. 1.The Preliminary Objection dated 18/9/2020 is dismissed
  2. 2.Costs awarded in favour of the Applicant

Authorities

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Legislation

  • Civil Procedure Actsection 2 (definition of personal representative)
  • Civil Procedure RulesOrder 1 Rule 9
  • Law Reform Actreferred to as Law Reforms Act (context of Troustik Union case facts)

Cases cited (8)

  • Mukisa Biscuits Manufacturing Company v West End Distributors Limited
    [1969] EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    [2015] eKLR
  • Troustik Union International & Another vs Jane Mbeyu & Another
    Civil Appeal No. 145 of 1990
  • Julius Andronicus Nyaga Karoge vs Ennedy Wawira Njagi & 6 Others
    {2014} eKLR
  • Alfred Njau & 5 others v City Council of Nairobi
    Nairobi Civ App No. 74 of 1982 [1983] eKLR
  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    Mombasa Civ Appeal No. 30 of 2013 [2014] eKLR
  • County Council of Nandi v Ezekiel Kibet Rutto & 6 Others
    Eldoret ELC No. 712 of 2013 [2013] eKLR
  • Peter Kim Baker & 2 others v Sidi Katana Bongo & another
    Mombasa Civ App No. 48 of 2018 [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited; claim for adverse possession over land parcel Loc 7/ICHAGAKI/645)

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, "John Kamande Ngugi v Peter Karanja Mwangi & another [2021] KEELC 2792 (KLR)", Case Analysis (2021). ELC Originating Summons dated 12/05/2020 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2792/eng@2021-06-17

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