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ELCDismissedOriginating Summons dated June 26, 2020 (ELC, Malindi)· [2022] KEELC 2846 (KLR)

Hamisi & another v The Estate Of Mtsonga Matsaki (Environment & Land Case 45 of 2020) [2022] KEELC 2846 (KLR)

Environment and Land Court
11 May 2022
2,522 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land claim for ownership by long occupation failed because the family's occupation was permitted, not hostile, and the dispute had already been decided in earlier court cases.

What this practically means

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Executive summary

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By an Originating Summons dated June 26, 2020, Pola Mwamanga Hamisi and Bakari Mtsonga Pola sought declarations that they had acquired parcel No. Kilifi/Mbwaka/Maereni/126 (approximately 2.2 hectares in Kilifi County) by adverse possession, vesting of the land in their names, and a vesting order compelling the Kilifi Land Registrar to register them. They claimed over 15 years of open, peaceful and continuous occupation, having been born on the land, and argued that time ran against the deceased owner (Mutsonga Matsaki Mwamanga, who died in 1981) under sections 16 and 17 of the Limitation of Actions Act, extinguishing his title before the administrators obtained grants in January 2021. The defendant, an administrator of the estate, responded that the ownership dispute had been litigated repeatedly: Kaloleni Land Case No. 28 of 1973, Land Case No. 28/75-76 and an arbitration appeal, an adjudication objection decided on March 5, 1981 granting the plaintiffs' father and grandmother a lifetime interest, and Mombasa ELC No. 269 of 2004, dismissed in 2018 as res judicata and statute-barred. The court framed three issues: propriety of the suit, res judicata, and adverse possession. It held the suit was improperly brought against the deceased's estate without naming the legal representative, that no amendment cured the defect, and that the claim was res judicata and an abuse of process. On adverse possession, the plaintiffs' occupation was in furtherance of their father's lifetime interest and under a lawful court order, so it was not adverse. The Originating Summons was dismissed with costs to the defendant.

Key legal issues

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01

Whether the suit was properly instituted against the estate of a deceased registered owner

Holding

The suit was improperly brought against the estate itself, and the administrator's later response did not cure the defect without amendment

Reasoning

The suit was filed against the estate of the deceased registered owner even though the plaintiffs admitted they did not know who the legal representatives were or whether a succession cause existed. Suits against deceased estates must be brought against the legal representative as defined in section 2 of the Civil Procedure Act. The son's response after obtaining a limited grant ad litem in January 2021, with no amendment sought or granted, did not sanitize the anomaly.

p. 4
02

Whether the suit was barred by res judicata

Holding

The claim was res judicata, the subject matter having been litigated and determined in prior suits between the same parties or those under whom they claim

Reasoning

Applying section 7 of the Civil Procedure Act and the five conjunctive elements of res judicata, the court noted that ownership of the suit property had been determined in Kaloleni Land Case No. 28 of 1973, Adjudication Case No. 28 of 1975-76, the Kilifi District Arbitration Board appeal, the 1981 adjudication objection which recorded a lifetime interest, and Mombasa ELC No. 269 of 2004 which was dismissed on the merits partly as res judicata and statute-barred. Litigation between the parties over the same land must end.

p. 5
03

Whether the plaintiffs had acquired title by adverse possession

Holding

No adverse possession was established because their occupation was in furtherance of their father's lifetime interest and under a lawful court order

Reasoning

The court accepted the defendant's submission that the plaintiffs occupied the land in furtherance of the lifetime interest granted to their father and grandmother by the 1981 adjudication objection decision and affirmed in prior litigation. Possession held under such an interest or pursuant to a lawful court order is not hostile or adverse; adverse possession and possession with permission cannot co-exist, so the limitation period never began to run.

p. 3

Legal principles established

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  • A suit against the estate of a deceased person must be brought against the legal representative; a response filed by a person later granted limited grants ad litem does not cure the defect absent amendment
  • A party who enters possession by virtue of an interest other than that of a trespasser cannot claim adverse possession; adverse possession and possession with permission cannot co-exist

Court orders

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  1. 1.The Originating Summons dated June 26, 2020 is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Limitation of Actions Actsection 16
  • Limitation of Actions Actsection 17
  • Civil Procedure Actsection 2 (definition of legal representative)
  • Civil Procedure Actsection 7
  • Civil Procedure RulesOrder 21 [1]

Cases cited (9)

  • John Florence Maritime Services Limited & another v CS for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Ndiema Samburi Soti v Elvis Kimtai Chepkeses
    [2010] eKLR
  • Pola Mwamanga Matsakii v Nzaro Mutsonga Matsaki & another
    [2018] eKLR
  • Kweyu v Omuto
    [1990] eKLR
  • Haro Yonda Juaje v Sadakta Dzengo Mbauro & Kenya Commercial Bank Limited
    [2014] eKLR
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Mohammed Abushin Mkullu v Suleiman Abdalla Hassan
    [2012] eKLR
  • Invesco Assurance Company Limited & 2 others v Auctioneers Licensing Board & another and Kinyanjui Njuguna & Company Advocates & another (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act in respect of title to land and adverse possession (Limitation of Actions Act)

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, "Hamisi & another v The Estate Of Mtsonga Matsaki (Environment & Land Case 45 of 2020) [2022] KEELC 2846 (KLR)", Case Analysis (2022). Originating Summons dated June 26, 2020 (ELC, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2846/eng@2022-05-11

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