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ELCOtherOriginating Summons dated 21/01/2022 (Siaya ELC)· [2024] KEELC 1719 (KLR)

Gem & another v Jura & 3 others; Land Registrar, Bondo (Interested Party) (Enviromental and Land Originating Summons E002 of 2022) [2024] KEELC 1719 (KLR)

Environment and Land Court
4 April 2024
2,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs brought an originating summons dated 21/01/2022 under Section 17 of the Limitation of Actions Act claiming they had acquired land parcel Siaya/Usigu/1120 by adverse possession, seeking a declaration of ownership, registration as proprietors, transfer documents to be executed, and prohibitory relief. The defendants, registered co-owners and brothers, filed a replying affidavit and counterclaim seeking dismissal of the suit, restoration of beacons, a declaration of ownership, vacant possession and a permanent injunction. The 2nd defendant died during the proceedings. The plaintiffs testified to occupation since 1994, construction of homes in 2008 and planting of trees, which was unchallenged. The court, on its own motion under Section 3A of the Civil Procedure Act and Section 173(1) of the Evidence Act, directed the Land Registrar to survey the property; his report confirmed the 1st plaintiff occupied the entire suit property. The court framed six issues and held: (i) the suit abated against the 2nd defendant as no substitution was made within one year of his death as required by Order 24 Rule 4 of the Civil Procedure Rules; (ii) because the defendants held the land as tenants in common in undivided shares, judgment in adverse possession could not be entered against the surviving co-owners absent a subsisting suit against all of them, applying the Supreme Court's decision in John Mbogua Getao; and (iii) the defendants' counterclaim in trespass was time barred under Section 7 of the Limitation of Actions Act, the cause of action having accrued on the plaintiffs' entry in 1994 and registration on 10/09/2009. The plaintiffs' suit was marked as abated against the 2nd defendant and struck out against the others; the counterclaim was struck out; and each party was ordered to bear their respective costs.

Key legal issues

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01

Abatement of suit against a deceased defendant

Holding

The suit abated against the 2nd defendant who died on 13/08/2023 and was not substituted within one year

Reasoning

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.

p. 5
02

Entry of judgment against surviving tenants in common

Holding

Judgment in adverse possession cannot be entered against the surviving co-defendants where the suit against one tenant in common has abated

Reasoning

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.

p. 5
03

Limitation of the defendants' counterclaim in trespass

Holding

The counterclaim was time barred, having been filed more than twelve years after the plaintiffs' entry in 1994

Reasoning

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.

p. 6
04

Plaintiffs' evidence of adverse possession

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The plaintiffs' suit against the 2nd defendant is hereby marked as abated.
  2. 2.The plaintiffs' suit is hereby struck out against the 1st, 3rd and 4th defendants.
  3. 3.The 1st, 3rd and 4th defendants' counterclaim against the plaintiffs is hereby struck out.
  4. 4.Each party shall bear their respective costs.

Authorities

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Legislation

  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 7
  • Civil Procedure ActSection 3A
  • Evidence ActSection 173(1)
  • Civil Procedure RulesOrder 24 Rule 4
  • Land Registration ActSection 91

Cases cited (4)

  • Mtana Lewa v Kahindi Ngala
    (2015) eKLR
  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2021] eKLR
  • Saiqua Sultana Hassan Haroon & 2 others v Abdul Malik
    [2016] eKLR
  • Mudigo Wa Kuwanga v Ngumbao Kazungu & another
    [2014] eKLR
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

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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, "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.