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ELCStruck OutEnvironment and Land Case Civil Suit E008 of 2023· [2023] KEELC 21837 (KLR)

Nadia Kara Saju v Robert Joseph Baker, Consuelo Faye Tegle & Paula J Bagshaw

Environment and Land Court
23 November 2023
8,696 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out an adverse possession suit because the claimant sued a dead man, sued beneficiaries without grants, and claimed the same land through probate.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Jo Mboya, J) disposed of two interlocutory applications in an adverse possession suit over L.R. No. 17/75 (Original No. 17/5/24), registered in the name of Kenneth Robert Baker, deceased. The Plaintiff, Nadia Kara Saju, claimed she had been in open and continuous occupation since 1992 and sought a temporary injunction and inhibition. The 2nd Defendant applied to strike out the Originating Summons as an abuse of process, noting the Plaintiff held a grant of probate in Nairobi HCC Succession Cause No. 736 of 2018 over the estate of Purvis Kara Baker, the widow of the registered proprietor, and had a pending application therein seeking transmission of the same property. The court framed four issues. First, it held the suit against the 1st Defendant, who died in 2013 before filing, was a nullity ab initio, applying Mcfoy v United Africa Ltd. Second, it held the 2nd and 3rd Defendants, sued merely as legatees without grants of letters of administration, lacked capacity to be sued over the estate, relying on Section 82 of the Law of Succession Act and Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama. Third, it held that claiming ownership under a grant of probate while simultaneously claiming adverse possession against the same property was antithetical and a gross abuse of the due process of the court. The Plaintiff's injunction application was dismissed, the striking-out application allowed, the Originating Summons struck out, status quo orders vacated, and costs awarded to the 2nd and 3rd Defendants.

Key legal issues

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01

Suit against a deceased 1st Defendant

Holding

The suit against the 1st Defendant, who died on 16th April 2013 before the suit was filed on 10th February 2023, is a nullity ab initio

Reasoning

A civil suit can only be maintained against living natural persons or legal entities. The 1st Defendant died in 2013, long before filing, and the Plaintiff conceded this. Following Mcfoy v United Africa Ltd, an act that is void is incurably bad and cannot be redeemed by amendment; the Plaintiff should have impleaded the deceased's executor or administrator instead.

p. 8
02

Locus standi of legatees

Holding

The 2nd and 3rd Defendants, sued as legatees and not as administrators of Kenneth Robert Baker's estate, cannot be sued over the suit property

Reasoning

The estate's sole administratrix, Purvis Kara Baker, died before distribution, so the estate was never effectively administered. Only personal representatives have power under Section 82 of the Law of Succession Act to sue or be sued for the estate. The Defendants would need fresh grants of letters of administration before transmission; a suit against mere legatees is premature, misconceived and bad in law.

p. 10
03

Abuse of due process - contradictory claims

Holding

Pursuing ownership via a grant of probate under a will while simultaneously claiming adverse possession against the same property is a gross abuse of court process

Reasoning

The Plaintiff obtained a grant of probate over Purvis Kara Baker's estate, which derived from the estate of Kenneth Robert Baker, the registered proprietor against whom adverse possession was claimed. Beneficial ownership under a probate grant and adverse possession are antithetical; a claimant cannot approbate and reprobate. Invoking both succession and civil jurisdiction contemporaneously amounts to forum-shopping and playing lottery with court process.

p. 14
04

Reliefs

Holding

Neither the injunction/inhibition application nor resistance to striking out could succeed given the fate of the suit

Reasoning

Since the suit was a nullity, stillborn and an abuse of process, no interim equitable relief could issue. The 2nd Defendant's striking-out application was meritorious and the Plaintiff's application devoid of merit, culminating in the striking out of the entire originating summons.

p. 16

Legal principles established

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  • No suit can be commenced or maintained against a dead person; such a suit is a nullity ab initio incapable of redemption by amendment
  • Only executors and administrators, not legatees, heirs or beneficiaries, have locus standi to sue or be sued on behalf of a deceased's estate, including in adverse possession claims
  • A claim for adverse possession cannot co-exist with a claim as heir, beneficiary or executrix under a grant of probate over the same property
  • Simultaneously invoking succession and civil jurisdiction to acquire the same property is a gross abuse of the due process of the court

Court orders

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  1. 1.The Application dated the 5th September 2023 is dismissed with costs
  2. 2.The Application dated the 13th April 2023 is allowed with costs
  3. 3.The suit vide Originating Summons dated the 10th February 2023 is struck out
  4. 4.Costs of the suit awarded to the 2nd and 3rd Defendants
  5. 5.The orders of Status Quo hitherto granted are vacated and/or discharged

Authorities

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Legislation

  • Limitation of Actions ActSections 37 and 38
  • Civil Procedure ActSection 6
  • Law of Succession ActSections 71, 81, 82
  • Companies ActChapter 486 (repealed)
  • Companies Act2015

Cases cited (17)

  • Lorna Catherine Philips versus I&M Bank Ltd & Another
    (2021)eKLR

    Threshold for temporary injunction

  • Saudi Arabian Airlines Corporation versus Sean Express Service Ltd
    (2014)eKLR

    Striking out should be exercised sparingly

  • Linnet Bee Oyier & Another vs Savings & Loans Kenya Ltd
    HCC No. 891 of 1966 [UR]

    Striking out is drastic and draconian

  • Muchanga Investment Ltd versus Safaris Unlimited (Africa) Ltd & 2 Others
    (2009)eKLR

    Abuse of due process; possession under licence is not adverse

  • Titus Mutuku Kasuve vs Mwaani Investment Ltd & 4 Others
    (2004)eKLR

    Adverse possession principles against non-owners

  • Kinatwa Cooperative Savings & Credit Society Ltd vs Kinatwa Prestige Ltd
    (2021)eKLR

    Res sub judice doctrine

  • Hezron Kamau Gichura vs Kianjora Enterprises Ltd & Another
    (2022)eKLR

    Equitable relief requires clean hands

  • Esther Nugari Gachomo vs Equity Bank Ltd
    (2019)eKLR

    Clean hands doctrine

  • Mcfoy versus United Africa Ltd
    (1952)eKLR

    A void act is a nullity, incurably bad and needs no order to set aside

  • Rajesh Pranjivan Chudasama versus Sailesh Pranjivan Chudasama
    [2014] eKLR

    Locus standi in succession matters requires a grant of letters of administration

  • Otieno v Ougo

    An action by an administrator before taking out letters of administration is incompetent from inception

  • Catherine Koriko & 3 others v Evaline Rosa
    [2020] eKLR

    Adverse possession claim inconsistent with claim as beneficiary of a deceased's estate

  • Haro Yonda Juaje –v- Sadaka Dzengo Mbauro & Kenya Commercial Bank
    (2014) eKLR

    One cannot claim adverse possession while conceding the registered proprietor's ownership

  • WAMBO v NJUGUNA
    1983 KLR 172

    Possession with leave and licence is not adverse until the licence is determined

  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] eKLR

    Definition and instances of abuse of court process

  • Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & another
    [2016] eKLR

    A suit not by or against a legal person is incompetent and a nullity

  • D. T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another
    Civil Appeal No. 37 of 1978

    Courts should aim at sustaining rather than summarily dismissing suits; amendment cannot save a nullity

Jurisdiction invoked
Environment and Land Court jurisdiction under Sections 37 and 38 of the Limitation of Actions Act (Cap 22) for adverse possession claims

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, "Nadia Kara Saju v Robert Joseph Baker, Consuelo Faye Tegle & Paula J Bagshaw", Case Analysis (2023). Environment and Land Case Civil Suit E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21837/eng@2023-11-23

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