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ELCStruck OutELC Case No. E013 of 2021 (O.S)· [2022] KEELC 1114 (KLR)

Abdirashid Adan Hassan v Estate of W H E Edgley [2022] KEELC 1114 (KLR)

Environment and Land Court
28 February 2022
EWE. K. Wabwoto
1,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an adverse possession claim because the landowner was sued as a deceased's estate without a legal representative — identify the right defendant first.

What this practically means

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Executive summary

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The plaintiff brought an originating summons dated 30th March 2021 under Sections 17, 18, 37 and 38 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules, 2020, claiming to have acquired Nairobi LR No. 214/372 in Muthaiga by adverse possession since 1983. He sought a declaration of ownership by adverse possession, registration as sole proprietor in place of the registered owner, dispensation with the original indentures, a permanent injunction, and costs. The defendant, sued as the Estate of W H E Edgley, entered appearance but filed no response, and the suit proceeded as undefended by viva voce evidence. The plaintiff testified that his father had been caretaker of the property for European owners and that he moved onto it after his father's death, renovating the house and paying land rates, producing his ID, photographs, a deed plan and rate receipts. The court first dealt with a preliminary issue: the suit was brought against an estate with no legal representative, and without a grant the plaintiff lacked locus standi, rendering the proceedings a nullity. On the merits, the court found the plaintiff failed to prove continuous, open and adverse possession; the date his father died, from which time would run, was not disclosed, and photographs showed a seemingly abandoned structure. Further, the claim sought extinguishment of a registered title but only a deed plan was produced, which was inconclusive. The court struck out the suit as incompetent and lacking merit, with no orders as to costs.

Key legal issues

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01

Whether a suit can be maintained against the estate of a deceased person without a legal representative

Holding

No. The suit against 'The Estate of W H E Edgley' was incompetent as no legal representative of the estate was shown to exist; the plaintiff lacked locus standi.

Reasoning

The court examined Section 2 of the Civil Procedure Act defining a legal representative, and found no evidence that any grant had been taken out or that a legal representative existed. Relying on Julian Adoyo Ongunga v Francis Kiberenge Abano, it held that suing an estate without a grant deprives the claimant of locus standi, rendering the proceedings null and void. The mere fact that the suit property belonged to the deceased was insufficient to sustain the suit.

p. 2
02

Whether the plaintiff acquired LR No. 214/372 by adverse possession

Holding

No. The plaintiff failed to prove continuous, open and adverse possession and failed to produce the title of the registered proprietor.

Reasoning

The plaintiff admitted he was born in Garissa and moved onto the property after his father's death, a date not disclosed, so the limitation period could not be computed. Photographs showed a seemingly run-down, abandoned structure, casting doubt on recent habitation and continuous possession. Further, under Section 17 of the Limitation of Actions Act the claim seeks extinguishment of a registered title, requiring production of the title of the registered proprietor; only a deed plan was produced, which was inconclusive.

p. 3
03

Who should bear the costs of the suit

Holding

No orders as to costs, notwithstanding that costs normally follow the event.

Reasoning

Although costs follow the event, the court noted the undefended nature of the suit, that the defendant's actual name and identity were unknown to the plaintiff, and that the affidavit of service was neither signed nor stamped, casting doubt on proper service. These circumstances justified departing from the ordinary rule and making no order as to costs.

p. 3

Legal principles established

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  • A suit cannot be brought against the estate of a deceased person; the claimant must obtain a grant and sue the legal representative to have locus standi
  • A party without locus standi renders proceedings a nullity, comparable to a court acting without jurisdiction
  • To prove title by adverse possession, possession must be adequate in continuity, publicity and extent, and adverse to the registered owner
  • A claim for adverse possession must be brought against the registered proprietor of the correctly identified parcel, verified by an annexed extract of title under Order 37 rule 7 of the Civil Procedure Rules

Court orders

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  1. 1.The suit is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 18, 37, 38
  • Civil Procedure Rules, 2020Order 37 rule 7
  • Civil Procedure ActSection 2

Cases cited (7)

  • Teresia Matoke Anyoka vs Daniel Nyaburi & 2 others
    [2021] eKLR
  • Ibrahim Wachira Karaguri v Mary Mwihaki Simon & another
    [2020] eKLR
  • Kimaro Macharia & another v Daniel Kanyango Karegwa & 2 others
    [2014] eKLR
  • Julian Adoyo Ongunga v Francis Kiberenge Abano
    Civil Appeal No. 119 of 2015
  • Maweu vs. Liu Ranching and Farming Cooperative Society
    1985 KLR 430
  • Samuel Miki Waweru vs. Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
Jurisdiction invoked
Environment and Land Court jurisdiction under Sections 17, 18, 37 and 38 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules, 2020

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "Abdirashid Adan Hassan v Estate of W H E Edgley [2022] KEELC 1114 (KLR)", Case Analysis (2022). ELC Case No. E013 of 2021 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1114/eng@2022-02-28

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