Gervasio Mwithimbu v Peter Kirimi M’mukiira & another [2022] KEELC 1759 (KLR)
The bottom line
#The court refused to halt a family succession case, ruling that an adverse possession claimant must pursue his land claim through the succession process itself.
What this practically means
#Executive summary
#Key legal issues
#Competence of the adverse possession originating summons against parties sued before a grant of letters of administration issued
The suit is competent; the defects in the description of the parties are curable by amendment, and no grant existed when the replies were filed since the grant issued to the proposed interested party only after the originating summons was filed.
The applicant described the defendants as issues and nephews of the deceased rather than administrators, and no certified extract of title was attached, but Order 37 empowers the court to direct service. The grant to the proposed interested party post-dated the suit, and he has already submitted to the court and disclosed information. The interest of justice under Article 159 and Sections 1A, 3 and 3A of the Civil Procedure Act favours amendment rather than striking out.
Whether the succession cause should be stayed pending determination of the adverse possession suit
Stay refused. The applicant demonstrated no sufficient cause; he delayed lodging his suit, failed to prosecute it after pleadings closed, and could raise his claim within the succession cause as a protest under Rule 41(3) and (4) of the Probate and Administration Rules.
Both the applicant's adverse possession claim and the beneficiaries' right to apply for a grant under the Law of Succession Act are legitimate rights. Stay is a drastic power exercised sparingly and exceptionally. A court handling a succession cause can set aside a particular share under Section 82 of the Law of Succession Act, so the applicant is not without a remedy in the succession cause itself.
Use of intemperate language in affidavits
The court censured both parties for exchanging unpalatable words and held affidavits should be restricted to issues that a party can substantiate.
The applicant used expletives against the respondents which the court found inappropriate, particularly when encouraged by officers of the court. The respondents also replied in kind. Courts have repeatedly held affidavits must be confined to facts relevant to the issues before the court.
Legal principles established
#- Stay of proceedings is a serious and grave power that interferes with a party's right to conduct its litigation and may only be exercised sparingly and in exceptional circumstances.
- A claim for adverse possession may be brought against a registered owner under Sections 7 and 38 of the Limitation of Actions Act read with Order 37 rule 7 of the Civil Procedure Rules.
- An unfitting description of parties in a suit may be cured by amendment in the interest of justice.
Court orders
#- 1.The originating summons be amended to reflect the current realities, including the demise of the 1st defendant, and the amended originating summons be filed and served within 14 days.
- 2.Parties to comply with Order 11 within 45 days from the date of the judgment.
- 3.Prayer for stay of proceedings in Succession Cause No. E14 of 2021 disallowed.
- Jurisdiction invoked
- Articles 159 and 50 of the Constitution; Sections 1A, 3 and 3A of the Civil Procedure Act; Order 1 Rule 10(2) and Order 37 of the Civil Procedure Rules; Sections 7 and 38 of the Limitation of Actions Act; Section 82 of the Law of Succession Act (Cap 160)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Veronica Sum (Suing as the Administrator of the Estate of Ernest Sum) v Joel Samoei[2023] KEELC 20250 (KLR)27 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Gervasio Mwithimbu v Peter Kirimi M’mukiira & another [2022] KEELC 1759 (KLR)", Case Analysis (2022). Succession Cause No. E14 of 2021 (application therein arising from Originating Summons dated 11.12.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1759/eng@2022-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.