Gem & another v Jura & 3 others; Land Registrar, Bondo (Interested Party) (Enviromental and Land Originating Summons E002 of 2022) [2024] KEELC 1719 (KLR)
The bottom line
#A strong land claim collapsed because the claimants failed to substitute a deceased co-owner within one year, showing procedure can defeat even good cases.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit against a deceased defendant
The suit abated against the 2nd defendant who died on 13/08/2023 and was not substituted within one year
The cause of action involved land, which survived the deceased defendant. Under Order 24 Rule 4 of the Civil Procedure Rules, the plaintiffs were required to apply to substitute the deceased's legal representative within one year of death. No substitution was made, and the suit therefore ceased to exist against him.
Entry of judgment against surviving tenants in common
Judgment in adverse possession cannot be entered against the surviving co-defendants where the suit against one tenant in common has abated
Under Section 91 of the Land Registration Act and the Supreme Court's decision in John Mbogua Getao, tenants in common hold undivided shares and no one can say which particular parcel belongs to which co-tenant. Adverse possession must be proved against all registered owners, so without a subsisting suit against the 2nd defendant holding a ¼ share, judgment against the rest was impractical.
Limitation of the defendants' counterclaim in trespass
The counterclaim was time barred, having been filed more than twelve years after the plaintiffs' entry in 1994
Although any tenant in common could counterclaim in trespass without the others by virtue of unity of possession, section 7 of the Limitation of Actions Act bars actions to recover land after twelve years. The defendants' registration on 10/09/2009 meant they had to file by 10/09/2021; they did not, and the counterclaim was struck out.
Plaintiffs' evidence of adverse possession
The plaintiffs appeared to have a good case on adverse possession, having occupied the suit property since 1994, but the claim failed on procedural grounds
PW1 testified to quiet, peaceful and uninterrupted occupation since 1994, building homes in 2008 and planting trees. This was unchallenged and corroborated by the Land Registrar's report ordered under Section 3A of the Civil Procedure Act and Section 173(1) of the Evidence Act, which found the 1st plaintiff occupied the entire suit property.
Legal principles established
#- Where one of several defendants dies and no substitution application is made within one year, the suit abates against the deceased defendant under Order 24 Rule 4 of the Civil Procedure Rules
- A claim in adverse possession against co-owners who are tenants in common must be pursued against all of them, since their shares are undivided and cannot be demarcated; judgment cannot be entered against some in the absence of a subsisting suit against all
- By virtue of unity of possession, any tenant in common may sue in trespass without joining the other co-tenants, but a claim to recover land must be brought within twelve years under section 7 of the Limitation of Actions Act
Court orders
#- 1.The plaintiffs' suit against the 2nd defendant is hereby marked as abated.
- 2.The plaintiffs' suit is hereby struck out against the 1st, 3rd and 4th defendants.
- 3.The 1st, 3rd and 4th defendants' counterclaim against the plaintiffs is hereby struck out.
- 4.Each party shall bear their respective costs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) read with the Limitation of Actions Act, Section 17; not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gem & another v Jura & 3 others; Land Registrar, Bondo (Interested Party) (Enviromental and Land Originating Summons E002 of 2022) [2024] KEELC 1719 (KLR)", Case Analysis (2024). Originating Summons dated 21/01/2022 (Siaya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1719/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.