Marindany v Kiplangat & another (Enviromental and Land Originating Summons E014 of 2021) [2024] KEELC 3395 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
The objection was premature; whether the deceased had acquired the land by adverse possession is a matter for trial
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.
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
Failure to plead capacity was not fatally defective; the supporting affidavit showed he held letters of administration ad litem
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 23rd June, 2023 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.