Adrew Kipkoskei Too v Francis arap Terer (Legal Administrator to the Estate of Sarah Kebor Kigen (Deceased) [2021] KEELC 4076 (KLR)
The bottom line
#A Kenyan court ruled that an adverse possession claim over inherited land can proceed even after a succession case has distributed that land.
What this practically means
#Executive summary
#Key legal issues
#Res judicata vis-à-vis Succession Cause No. 49 of 2019
The suit is not res judicata; the succession cause involved distribution through transmission while the present suit claims ownership by adverse possession, and the magistrates' court had no jurisdiction over adverse possession claims.
The court compared the two causes of action. The succession cause concerned confirmation of a grant and distribution of the deceased's estate, while the present suit seeks ownership by limitation (adverse possession). Although both touch the same land and ownership is in issue, the legal bases diverge, and the magistrates' court lacked jurisdiction to try adverse possession claims. Different causes of action defeat a plea of res judicata.
Locus standi of the Defendant as legal representative
The Defendant no longer has locus standi to be sued as legal representative of the estate since the grant was confirmed and titles issued to beneficiaries; however, the misjoinder/non-joinder rule preserves the suit against parties actually before the court.
Following confirmation of the grant on 9 September 2020 and transfer of the suit parcels to beneficiaries, the estate was extinguished and the administrator became functus officio. The Plaintiff therefore could not sue the Defendant in that capacity. Nonetheless, Order 1 Rule 9 CPR provides that no suit shall be defeated by misjoinder or non-joinder, so the court can deal with the rights of parties actually before it.
Sustainability of the preliminary objection
The preliminary objection fails; it lacked merit and was dismissed with costs.
Applying the Mukisa Biscuits and Avtar Singh Bhamra thresholds, a preliminary objection must be a pure point of law assuming the truth of pleaded facts. The court found the claim could not have been litigated in the magistrates' succession cause for want of jurisdiction, and applying Avtar Singh Bhamra the objection failed as it lacked merit and was dismissed with costs.
Legal principles established
#- A suit claiming ownership by adverse possession is not res judicata a confirmed succession cause where the causes of action and the jurisdiction of the tribunals differ.
- Upon confirmation of a grant and issuance of title deeds to beneficiaries, the estate of the deceased is extinguished and an administrator ceases to have locus standi as legal representative.
- A suit shall not be defeated by misjoinder or non-joinder of parties.
Court orders
#- 1.Preliminary Objection dated 6th October 2020 dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land; suit founded on adverse possession under the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adrew Kipkoskei Too v Francis arap Terer (Legal Administrator to the Estate of Sarah Kebor Kigen (Deceased) [2021] KEELC 4076 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4076/eng@2021-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.