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ELCDismissedELC E005 OF 2023 (OS)· [2024] KEELC 5022 (KLR)

Salome Kainda M'rintara v Henry Kiogora M'chokera

Environment and Land Court
26 June 2024
CNC K Nzili
3,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A widow won on the facts but lost the case because she filed a new suit instead of reviving her abated one under Kenyan procedure.

What this practically means

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Executive summary

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The plaintiff, widow and legal representative of the estate of M'Muraa M'Aritho, sought by originating summons a declaration that she was entitled to 1 ½ acres out of L.R No. Nyaki/Thuura/1902 by adverse possession, on the basis that her late husband bought one acre from the registered owner, Chokera Ramare, in 1980, took vacant possession, erected developments, obtained land control board consent in 1982/1983, but the transfer was never completed because the seller died in 1984. She relied on a sale agreement, official search, land control board consent, prior litigation (SRMCC No. 273 of 1984), an LDT award, and a succession cause (Meru H.C Succession Cause No. 457 of 2010) in which one acre was reserved for determination by the ELC. The defendant, legal representative of the seller's estate, argued the occupation was not adverse, that LDT proceedings showed no occupation, that the plaintiff occupied a separate parcel (L.R No. 1901), and critically that a prior suit, Meru ELC No. 11 of 2019, over the same cause of action had abated on 13.7.2022 upon the death of the original defendant, and a review application was dismissed on 7.12.2022. The court accepted that the elements of adverse possession were substantially made out - sale, possession, lapsed consent, hostile occupation beyond twelve years, no effective entry or refund - and stated it would have declared the plaintiff entitled had the suit not been barred. However, holding that Order 24 Rule 7(1) of the Civil Procedure Rules forbids a fresh suit on the exact cause of action of an abated suit and that such refiling is an abuse of process, the court found the suit incompetent and dismissed it with costs.

Key legal issues

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01

Whether a fresh suit on the same cause of action after abatement is maintainable

Holding

The suit is incompetent as it is barred by Order 24 Rule 7(1) of the Civil Procedure Rules

Reasoning

The plaintiff filed Meru ELC No. 11 of 2019 against the original owner, who died in 2021 without substitution by July 2022, so the suit abated. An application for review was dismissed on 7.12.2022 and no appeal was lodged. The present suit, filed on 18.8.2023, pleads the exact same cause of action against the estate. Order 24 Rule 7(1) forbids a fresh suit on the same cause of action after abatement, and such filing is an abuse of court process.

p. 5
02

Whether the plaintiff proved adverse possession

Holding

On the evidence the plaintiff would have succeeded, but the court did not make the declaration because of the procedural bar

Reasoning

There was a sale agreement of 1980 for one acre, vacant possession was handed over, and land control board consent was obtained in 1982. The transfer was never effected because the seller died in 1984. Once the consent lapsed after six months the sale became void, and continued occupation became hostile to the registered title. No effective entry, eviction, or refund of the purchase price was proved, and twelve years had elapsed before the succession cause was filed.

p. 5

Legal principles established

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  • Where a suit abates, no fresh suit may be brought on the exact same cause of action; reviving an abated suit by fresh suit is an abuse of process under Order 24 Rule 7(1) of the Civil Procedure Rules

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 7(1)
  • Civil Procedure ActSections 1A & 1B
  • Probate & Administration RulesRule 41

Cases cited (13)

  • Mtana Lewa vs. Kahindi Mwagandi
    (2015) eKLR
  • Karnataka Board of Wakf vs Government of India & others
    (2004) IO SCC 779
  • Songoi vs Songoi
    (2020) eKLR
  • Wambugu vs Njuguna
    (1983) KLR 172
  • Nteere vs Marangu
    ELC E003 of 2021 (2024) KEELC 4446 (KLB) 29 May 2024
  • Public Trustees vs Wanduru Ndegwa
    (1984) eKLR
  • Githu vs Ndeete
    (1984) KLR 776
  • Rebecca Mijide Mungole & another vs. KPLC
    (2017) eKLR
  • Said Sweilem Gheithan Saanum vs Commissioner of Lands and Others
    (2015) eKLR
  • Jenifier Atieno Mugambo vs South Nyanza Sugar Co. Ltd
    (2000) eKLR
  • Gathoni Wahome Vs Kabuchi Rwario & others
    (2017) eKLR
  • Charles Mungai Nyanguthie & another vs Geofirey Gitau Njuru & others
    (2019) eKLR
  • William Muinthe Kilundo vs Peter K. Wambua & others
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution; claim brought by originating summons for adverse possession over L.R No. Nyaki/Thuura/1902

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, "Salome Kainda M'rintara v Henry Kiogora M'chokera", Case Analysis (2024). ELC E005 OF 2023 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5022/eng@2024-06-26

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