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ELCAllowedOriginating Summons dated 13th December, 2018· [2023] KEELC 146 (KLR)

Moses Mutai Munai v Defendant (Administrator of the Estate of Taplelei w/o Chemosit, Deceased)

Environment and Land Court
19 January 2023
MOM.C. Oundo
3,650 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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The court awarded a Kericho man one acre of land he had openly occupied and farmed for over 40 years, even though the registered owner had died.

What this practically means

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Executive summary

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The plaintiff, an 86-year-old businessman, brought an Originating Summons under Order 37 rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act claiming one acre of L.R No. Kericho/Kibwastuiyao/433 by adverse possession. He testified that in 1977 he bought the acre from Taplelei w/o Arap Chemosit, the registered proprietor, discharging her AFC loan of about Kshs. 10,000/-, and thereafter fenced, ploughed and cultivated the land openly and continuously. The sale was oral and became void for want of Land Control Board consent. After the vendor died on 13th November 1994 he remained in occupation until 2014/2015 when her sons removed his fence and excluded him; he was also left out of their succession cause. The defendant, the vendor's eldest son and administrator, was served but never filed a reply or appeared, so the suit proceeded by formal proof. The court framed two issues: whether prescription binds predecessors in title, and whether the plaintiff had acquired title by adverse possession. Relying on the Limitation of Actions Act and Court of Appeal authority, the court held that possession became adverse when the controlled transaction became void, that the plaintiff's uncontroverted possession for over 41 years was nec vi, nec clam and nec precario, and that a claim for adverse possession lies against a deceased person's estate. The Originating Summons was allowed in its entirety as prayed, with costs on a lower scale since the suit was undefended.

Key legal issues

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01

Whether the plaintiff acquired title to one acre by adverse possession against the estate of the deceased vendor

Holding

Yes. The plaintiff entered in 1977 as purchaser, remained in open, exclusive, peaceful and actual possession for over 41 years, well beyond the 12-year limitation period, and his possession became adverse when the controlled transaction became void for lack of Land Control Board consent.

Reasoning

The plaintiff's evidence that he took possession in 1977 and never left was uncontroverted, the defendant having filed no reply and declined to defend. The oral sale became void under the Land Control Act for want of consent; per Samuel Miki Waweru v Jane Njeri Richu, continued possession then becomes adverse. Possession was nec vi, nec clam, nec precario, continuous through the vendor's lifetime and after her death in 1994. Prescription binds predecessors in title, so the claim lies against the estate.

p. 6

Legal principles established

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  • A claim for adverse possession can be sustained against the estate of a deceased registered proprietor, since prescription affects not only present holders of title but their predecessors.

Court orders

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  1. 1.The Originating Summons dated 13th December, 2018 is allowed in its entirety as prayed
  2. 2.Costs at a lower scale since the suit was undefended

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 7
  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13(1)
  • Limitation of Actions Act (Cap 22)Section 17
  • Limitation of Actions Act (Cap 22)Sections 38(1) and (2)
  • Land Registration ActSection 28(h)
  • Evidence ActSection 68(1)(c) as read with subsection 2(a)
  • Law of Contract Act, Cap 23Section 3(3)
  • Land Control ActSection 6(1)

Cases cited (9)

  • Peter Mbiri Michuki vs. Samuel Mugo Michuki
    [2014] eKLR
  • Peter Okoth v Ambrose Ochido Andajo & Benedict Odhiambo Oketch
    [2021] eKLR
  • Kasuve v Mwaani Investments Limited & 4 others
    [2004] 1 KLR 184
  • Benjamin Kamau Murma & Others vs Gladys Njeri
    C A No. 213 of 1996
  • Littledale vs Liverpool College
    (1900) 1 Ch. 19, 21
  • Samuel Miki Waweru v Jane Njeri Richu
    [2007] eKLR
  • Douglas Mbugua Mungai v Harrison Munyi
    [2019] eKLR
  • Kairu v. Gacheru
    [1986-1989] E.A
  • Titus Kigoro Munyi v. Peter Mburu Kimani
    (2015) eKLR
Jurisdiction invoked
Order 37 rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act (original jurisdiction of the Environment and Land Court)

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, "Moses Mutai Munai v Defendant (Administrator of the Estate of Taplelei w/o Chemosit, Deceased)", Case Analysis (2023). Originating Summons dated 13th December, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/146/eng@2023-01-19

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