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ELCDismissedELC Case (Originating Summons dated 3rd June 2021, amended 22nd November 2022) - Naivasha· [2024] KEELC 3395 (KLR)

Marindany v Kiplangat & another (Enviromental and Land Originating Summons E014 of 2021) [2024] KEELC 3395 (KLR)

Environment and Land Court
25 April 2024
2,966 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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The Environment and Land Court in Naivasha allowed a family's adverse possession claim over deceased relative's land to proceed to trial, rejecting attempts to strike it out.

What this practically means

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Executive summary

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The Applicant filed an Originating Summons under Order 37 rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act seeking a declaration that he was entitled, on behalf of the estate of Lucio Talai Arap Narok, to 0.36 hectares of LR No. Kericho/Litei/875 by adverse possession of over 40 years, together with orders for registration, transfer, a permanent injunction and eviction. The Respondents filed a Notice of Preliminary Objection contending that the suit was time-barred under Section 7 of the Limitation of Actions Act, and contravened Order 4 rule 4 of the Civil Procedure Rules and Sections 45 and 54 of the Law of Succession Act, and should be struck out. The Applicant argued the objection was premature and that capacity defects were amendable. Oundo J., applying the Mukisa Biscuits principles, held that under Section 9(2) of the Limitation of Actions Act the right of action accrued on the date of the deceased's death on 6th October 2005, and her administrator had properly filed suit on behalf of the estate; whether the deceased actually acquired title by adverse possession was a matter for trial. On capacity, the failure to state the representative capacity was a curable oversight, the supporting affidavit disclosing a grant ad litem, and filing suit preserved rather than intermeddled with the estate. The court dismissed the preliminary objection with costs on 25th April 2024, leaving the suit to proceed to full trial.

Key legal issues

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01

Whether the claim for adverse possession on behalf of the deceased's estate was time-barred under Section 7 of the Limitation of Actions Act

Holding

The objection was premature; whether the deceased had acquired the land by adverse possession is a matter for trial

Reasoning

The court held that under Section 9(2) the right of action accrued on the date of the deceased's death on 6th October 2005, and her administrator duly filed suit on behalf of the estate as adverse possessor. Whether the deceased had in fact acquired the land by adverse possession over 40 years is a factual question to be determined at trial, not on a preliminary objection.

p. 5
02

Whether the Applicant had capacity to sue under Order 4 Rule 4 of the Civil Procedure Rules and Sections 45 and 54 of the Law of Succession Act

Holding

Failure to plead capacity was not fatally defective; the supporting affidavit showed he held letters of administration ad litem

Reasoning

Order 4 Rule 4 requires capacity to be stated in the plaint, but the omission was a curable oversight. The supporting affidavit to the Amended Originating Summons clearly stated he was suing on behalf of the estate under a grant ad litem. Filing suit to preserve the deceased's property was not intermeddling under Section 45.

p. 6

Legal principles established

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  • Where a person sues to recover land of a deceased person who was in possession at death, the right of action accrues on the date of death
  • Failure to state the representative capacity in which a plaintiff sues is a curable irregularity amendable, not fatal

Court orders

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  1. 1.The Preliminary Objection dated 23rd June, 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 7
  • Civil Procedure RulesOrder 4 rule 4
  • Limitation of Actions Act, Cap 22Section 7
  • Limitation of Actions Act, Cap 22Section 9(2)
  • Limitation of Actions Act, Cap 22Section 13
  • Limitation of Actions Act, Cap 22Sections 37 and 38
  • Law of Succession ActSection 45
  • Law of Succession ActSection 54 and Section 14 of the Fifth Schedule
  • Civil Procedure ActSections 1A and 1B
  • Environment and Land Court ActSection 19
  • Constitution of KenyaArticle 159(2)

Cases cited (12)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) E.A. 696
  • Quick Enterprises Limited v Kenya Railways Corporation
    Kisumu High Court Civil Case No. 22 of 1999
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Dickson Ngige Ngugi v Consolidated Bank Ltd (Formerly Jimbo Credit Corporation Limited) & another
    [2020] eKLR
  • Gathoni v Kenya Co-operative Creameries Ltd
    (1982) KLR 104
  • Sohanlaldurgadass Rajput & another v Divisional Integrated Development Programmes Co Ltd
    [2021] eKLR
  • Re Estate of John Gakunga Njoroge
    [2015] eKLR
  • Morris Mbiti Mburugu v Denis Kimathi M'Mburugu
    [2016] eKLR
  • County Government of Laikipia v James Kimani Mburu & 3 others
    [2020] eKLR
  • Peter Chepkochoi Mitei v Esther Jelagat Ng'eny & 3 others
    [2014] eKLR
  • Juma Abdalla Matata v Ali Changoma & 5 others
    [2014] eKLR
  • Philip Chemwolo & another v Augustine Kubende
    [1986] eKLR
Jurisdiction invoked
Order 37 rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya; Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Marindany v Kiplangat & another (Enviromental and Land Originating Summons E014 of 2021) [2024] KEELC 3395 (KLR)", Case Analysis (2024). ELC Case (Originating Summons dated 3rd June 2021, amended 22nd November 2022) - Naivasha. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3395/eng@2024-04-25

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