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ELCPartially AllowedOriginating Summons dated 24th March 2017 (amended 24th July 2019)· [2024] KEELC 3772 (KLR)

Njuguna (Suing in his own capacity and in his capacity as the personal representative of the Estate of Monicah Wanjiku Thuo (Deceased) & another v Mwaura (Sued as the personal representative/administrator of the Estate of the Late Paul Mwaura Thuo (Deceased) (Environment & Land Case 201 of 2017) [2024] KEELC 3772 (KLR)

Environment and Land Court
22 April 2024
6,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court granted one family ownership of a Mathare plot after 12+ years' occupation, but dismissed claims over two unregistered plots.

What this practically means

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Executive summary

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The Applicants, Joseph Julius Gitau Njuguna and Beatrice Wambui Njuguna, brought an Originating Summons seeking to be registered as proprietors of three properties formerly belonging to the late Paul Mwaura Thuo - a Kamulu (Ruai) plot, a Mathare plot and a Sunton Kasarani plot - on the ground of adverse possession, asserting occupations running from 1994 and 1991 respectively. The Respondent, administrator of the deceased's estate, opposed the claim, contending the suit was res judicata and sub judice given Succession Cause No. 1568 of 1994 and a pending Court of Appeal application, and that the Applicants were vexatious litigants who had never proved their claims. The court framed three issues. On res judicata, it held the succession court had a different jurisdiction and the Applicants were not identical parties to that cause. On sub judice, it found the pending appeal concerned heirship findings distinct from the adverse possession claim. On the merits, the court held that only the Mathare plot was registered, so only that claim could be entertained. It found that time ran from 9th April 1998, that the Applicants' objector proceedings in the succession cause did not interrupt time, and that the Respondent had admitted the occupation. The 1st Applicant proved adverse possession of the Mathare plot. The court declared that the 1st Applicant acquired title to Plot No. L.R. No. 209/9754/53/Mathare by adverse possession, directed the Chief Land Registrar to register him as absolute proprietor, dismissed the remaining prayers, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the suit is res judicata given Succession Cause No. 1568 of 1994

Holding

The suit is not res judicata because the succession court has a different jurisdiction and the parties were not identical; the 1st and 2nd Applicants were not parties to the succession cause.

Reasoning

The court delineated the jurisdiction of the ELC and probate courts, holding the succession cause was heard by a court with different jurisdiction. It further found the parties were not identical, since the Applicants here were not parties to the succession cause - the 1st Applicant only testified as a witness and the 2nd Applicant was not a party at all. Both elements of res judicata therefore failed.

p. 8
02

Whether the suit is sub judice given the pending Court of Appeal application

Holding

The matter is not sub judice because the appeal before the Court of Appeal concerns the succession court's findings on heirship, which is a distinct subject matter from the adverse possession claim.

Reasoning

Applying Section 6 of the Civil Procedure Act and the elements in the KNCHR case, the Respondent had to show pending suits over the same subject matter between the same parties. The Court of Appeal ruling itself acknowledged the existence of this adverse possession suit as a separate matter, and the subject matter of the appeal was distinct from the claim before this court.

p. 9
03

Whether the Applicants acquired title by adverse possession

Holding

The 1st Applicant acquired title to the Mathare plot only, having proved non-consensual, actual, open, notorious, exclusive and adverse occupation for over twelve years from 9th April 1998; the claims over the other two plots failed for want of registration.

Reasoning

Time ran from issuance of the Mathare title on 9th April 1998. The court held that the objector proceedings in the succession cause did not amount to assertion of rights capable of stopping time, and the Respondent admitted the Applicants' occupation in cross-examination. However, since the Kamulu and Kasarani plots were not registered, no claim for adverse possession could arise in respect of them.

p. 13

Legal principles established

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  • A succession cause or objection proceedings do not amount to assertion of rights by a proprietor capable of interrupting the running of time for adverse possession; the proprietor must take legal proceedings for recovery or make effective entry into the land.
  • A claim for adverse possession under Section 38(1) of the Limitation of Actions Act can only succeed in respect of registered land, and the title must be annexed to the Originating Summons.

Court orders

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  1. 1.The 1st Applicant has acquired title to the suit property known as Plot No. L.R. No. 209/9754/53/Mathare by way of adverse possession
  2. 2.The Chief Land Registrar is directed to register the 1st Applicant absolutely as the registered proprietor of Plot No. L.R. No. 209/9754/53/Mathare
  3. 3.The rest of the prayers in the Originating Summons are dismissed
  4. 4.Each party shall bear his/her own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 16
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38(1)
  • Land Registration ActSection 28(h)
  • Law of Succession ActSection 45
  • Law of Succession ActCap 160
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 37 Rule 7
  • Constitution of KenyaArticle 162(2)
  • Practice Directions on Proceedings in the Environment and Land Court

Cases cited (25)

  • Titus Mutuku Kasuve vs Mwaani Investments Ltd & 4 Others
    [2004] eKLR
  • Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another
    [2015] eKLR
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR
  • Gladwell Muthoni Njoroge vs Wangaruro Mbugua & 16 Others
    [2018] eKLR
  • Mwangi Githu vs Livingstone Ndeete
    [1980] eKLR
  • In re Estate of Samuel Mundati Gatabaki (deceased)
    eKLR
  • In re Estate of M'Ngarithi M'miriti
    [2017] eKLR
  • In re Estate of Edward Mutuku Mwando (deceased)
    [2022] eKLR
  • Kenya Commercial Bank Limited v Muiri Cofiee Estate Limited & Another
    [2016] eKLR
  • John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others
    [2021] eKLR
  • Uhuru Highway Developers Limited v Central Bank of Kenya & others
    [1999] eKLR
  • Nicholas Njeru v Attorney General & 8 others
    Civil Appeal 110 of 2011 [2013] eKLR
  • Mbula Muoki Ndolo & Another v Kenya Power and Lighting Company Limited
    [2017] eKLR
  • Salome Wambui Njau v Caroline Wangui Kiguru
    ELC (2013) eKLR
  • Isaac Kinyua & 3 Others vs Hellen Kaigongi
    [2018] eKLR
  • Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties)
    [2020] eKLR
  • Republic vs Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya
    [2020] eKLR
  • Mbira vs Gachuhi
    (2002) IEALR 137
  • Haro Yonda Juaje v Sadaka Dzengo Mbauro & Another
    [2014] eKLR
  • Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees
    [2016] eKLR
  • Mary Stephen Muthiani Kilaka v Julius Nzioka Vini
    [2018] eKLR
  • Stephen Mwangi Gatunge vs Edwin Onesmus Wanjau
    [2022] eKLR
  • Amos Weru Murigu v Marata Wangari Kambi & Another
  • Isaac Cypriano Shingore vs Kipketer Togom
    [2016] eKLR
  • Githu v Ndeete
    [1984] KLR 776
Jurisdiction invoked
Article 162(2) of the Constitution - Environment and Land Court jurisdiction over title to land; Section 38 of the Limitation of Actions Act

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, "Njuguna (Suing in his own capacity and in his capacity as the personal representative of the Estate of Monicah Wanjiku Thuo (Deceased) & another v Mwaura (Sued as the personal representative/administrator of the Estate of the Late Paul Mwaura Thuo (Deceased) (Environment & Land Case 201 of 2017) [2024] KEELC 3772 (KLR)", Case Analysis (2024). Originating Summons dated 24th March 2017 (amended 24th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3772/eng@2024-04-22

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