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ELCStruck OutEnvironment & Land Case E005 of 2022· [2023] KEELC 20909 (KLR)

Kimanzi v Mulwa

Environment and Land Court
17 October 2023
LKL. G. Kimani
4,174 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kitui court struck out an adverse possession land claim because the buyer sued the wrong person and bought land from a deceased owner's estate illegally.

What this practically means

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Executive summary

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The plaintiff, by Originating Summons dated 24th May 2022, claimed ownership of land parcel Matinyani/Kalindilo/572 by adverse possession and sought registration as proprietor, with consequential orders to the Kitui County Lands Registrar, plus costs. She alleged she purchased the land from one Weneslas Nzomo Kikungu by agreement dated 29th June 2008, took open, continuous and hostile possession for over twelve years, developed it and buried a daughter-in-law on it, all without permission of the defendant or the deceased's beneficiaries. The defendant denied knowledge of the plaintiff, asserted the land belonged to her late husband Mulwa Mue (Deceased), and contended the plaintiff was a trespasser who only fenced the land recently. The court framed two issues: whether the Originating Summons was properly before the court, and whether the plaintiff proved adverse possession. On the first, the court found the plaintiff had not proved the defendant was the personal representative of the deceased registered owner, and that adverse possession can only be claimed against a properly registered owner or personal representative who must be a party. The court further held the plaintiff's purchase of and entry onto land of a deceased person contravened Section 45(1) of the Law of Succession Act, rendering the transaction illegal and unenforceable. On the merits, the claim also failed. The suit was struck out as incompetent and bad in law, with costs awarded to the defendant.

Key legal issues

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01

Whether the suit was properly instituted against the defendant as administrator of the deceased registered owner's estate

Holding

The suit was incompetent because the plaintiff did not prove the defendant was the personal representative of the deceased registered owner

Reasoning

The land was registered in the name of Mulwa Mue (Deceased). The plaintiff produced no letters of administration or other proof that the defendant was a personal representative. Following Mwinyi Hamisi Ali, adverse possession must be claimed against the registered owner or personal representative, who must be a party; a suit against a party without locus standi is null and void.

02

Whether the plaintiff's purchase of and entry onto land of a deceased person was lawful

Holding

The purchase and possession contravened Section 45(1) of the Law of Succession Act and rendered the transaction illegal and unenforceable

Reasoning

The plaintiff bought the suit land in 2008 from a third party when the registered owner was already deceased. Taking possession of free property of a deceased person without a grant is an offence under Section 45(1). Courts will not enforce contracts declared illegal by statute; the illegality voids the claim.

p. 6
03

Whether the plaintiff proved adverse possession against the defendant

Holding

The claim failed; the defendant is neither the registered owner nor a proven administrator, and the ingredients of adverse possession were not established against her

Reasoning

Applying Mtana Lewa and Daniel Kimani Ruchire, adverse possession requires open, continuous, hostile possession to the knowledge of the registered owner. The only person who could have omitted to act was the deceased registered owner or his personal representative, not the defendant. The claim therefore had no merit against her.

p. 8

Legal principles established

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  • Adverse possession can only be claimed against a properly registered owner, who must be a party to the suit
  • A plaintiff must prove as a fact that a defendant sued as administrator of a deceased's estate holds that capacity; mere designation is insufficient
  • No court will enforce an illegal contract or allow itself to be made the instrument of enforcing obligations arising out of an illegal transaction

Court orders

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  1. 1.The suit herein is found to be improperly before the court, incompetent, and bad in law and the same is hereby struck out.
  2. 2.On the merits, the plaintiff did not prove entitlement to the suit land by adverse possession; the suit would have been dismissed had it not been struck out.
  3. 3.Costs of the suit are awarded to the defendant.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38
  • Law of Succession Act Cap 160Section 82(b)(ii)
  • Law of Succession Act Cap 160Section 45(1)
  • Civil Procedure ActSection 2
  • Land Control ActSections 6(1) and 22
  • Registered Land Act (repealed)Section 30(g)

Cases cited (16)

  • Simon Kilige Kingoo & 11 others vs Amos Kamia Nguku & 4 others
    (2019) eKLR

    Entry of an adverse possessor on land need not be legal, but must be under some right

  • Kweyu vs Omutut
    (1999) KLR 709

    Elements of adverse possession: actual, open, uninterrupted, notorious, hostile, exclusive and continuous use

  • Patrick Magu Mwangi Kimunyu-vs Joreth Limited
    (2015) eKLR

    Cited by defendant to show possession must be open and continuous

  • Ndatho-vs-Itumo & 2 others
    (2002) 2 KLR 637

    Cited by defendant on requirements of adverse possession

  • Wambugu vs-Njuguna
    (1983) KLR 174

    Cited by defendant (via Karuntimi Raiji) on adverse possession requirements

  • Karuntimi Raiji-vs M'makinya
    (2013) eKLR

    Cited by defendant for the precedents on open and continuous possession

  • Mwinyi Hamisi Ali vs. the Attorney General & Another
    [1997] eKLR

    Adverse possession can only be claimed against a properly registered owner who must be a party to the suit

  • Abdirashid Adan Hassan v Estate of W H E Edgley
    [2022] eKLR

    Proceedings null and void where no legal representative of a deceased party is shown

  • Julian Adoyo Ongunga v Francis Kiberenge Abano
    Civil Appeal No. 119 of 2015

    Lack of locus standi equated to acting without jurisdiction; null and void proceedings

  • David Sironga Ole Tukai v Francis Arap Muge & 2 others
    [2014] eKLR

    Occupation declared illegal by statute cannot constitute an overriding interest; courts will not enforce illegal contracts

  • Mapis Investment (K) Ltd v Kenya Railways Corporation
    [2005] 2 KLR 410

    Ex turpi causa non oritur action; no court ought to enforce an illegal contract

  • Scott V Brown, Doering, MCNAB & CO
    [1892] 2 QB 724

    Ex turpi causa maxim as approved in Mapis Investment

  • Patel v Singh (No 2)
    [1987] KLR 585

    Threefold effects of illegality upon a contract

  • Archbolds (freightage) Ltd v S. Spanglett Ltd
    [1961] 1 QB 374

    Devlin LJ's statement on the effects of illegality, relied on in Patel v Singh

  • Mtana Lewa –vs- Kahindi Ngala Mwagandi
    [2015] eKLR

    Definition and essential prerequisites of adverse possession

  • Daniel Kimani Ruchire vs Swift Ruther Food & Co. Ltd
    (1980) KLR

    Plaintiff must prove use nec vi, nec clam, nec precario and the registered owner's knowledge of ouster

Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court); claim brought by Originating Summons under Section 38 of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kimanzi v Mulwa", Case Analysis (2023). Environment & Land Case E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20909/eng@2023-10-17

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