Kibiri v Kibunja (Sued as the personal representative of the Estate of Walter Kibunja Kiruri - Deceased) (Enviromental and Land Originating Summons E021 of 2022) [2024] KEELC 5093 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an adverse possession claim because the buyer sued one administrator instead of both and bought estate land illegally.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on non-joinder of the co-administrator met the Mukisa Biscuit threshold
It was a pure point of law based on Order 31 Rule 2 and was upheld; the suit was struck out as incurably defective
The objection rested on the mandatory requirement in Order 31 Rule 2 that all administrators be joined. The plaintiff knew of the co-administrator Samuel Kibunja Kamau and alleged he was deceased without proof. The defendant asserted he was alive. Compliance was a legal requirement not curable by the overriding objective, and the plaintiff failed to amend his pleadings after being put on notice.
Whether the plaintiff acquired title by adverse possession over the 1.5 acres
No - his entry was permissive and founded on an illegal sale by a beneficiary, amounting to intermeddling, and in any event the claim was against the wrong party
The plaintiff entered in 1999 through purchase from Mariam Wambui, a beneficiary, while the land remained registered in the deceased's name and succession was pending. Such dealing with estate property contravenes section 45 of the Law of Succession Act. Any claim lies against the beneficiaries of the estate of Ruthi Kiruri after distribution, not against the administrators who never sold the land.
Who should bear the costs of the suit
Costs followed the event and were awarded to the successful Defendant under section 27 of the Civil Procedure Act
No special circumstances existed to displace the ordinary rule that costs follow the event, so the successful litigant, the Defendant, was awarded costs.
Legal principles established
#- A preliminary objection must be a pure point of law, not dependent on ascertainment of facts
- Where there are several trustees, executors or administrators, they must all be made parties to a suit against one or more of them
- Adherence to Order 31 Rule 2 is a legal requirement, not a procedural technicality curable under Article 159(2)(d) of the Constitution
- Taking possession of a deceased person's free property without a grant of representation amounts to intermeddling, an offence under section 45 of the Law of Succession Act
- Adverse possession requires non-permissive, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of 12 years
Court orders
#- 1.The Preliminary Objection is upheld
- 2.The suit is struck out for failure to sue the co-administrator of the estate of Walter Kibunja Kiruri
- 3.The suit is struck out and/or dismissed entirely with costs to the Defendant
- Jurisdiction invoked
- Environment and Land Court Act, section 3 (original jurisdiction over adverse possession claim relating to land)
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.
- Irungu & another v Kamau & another (Land Case E013 of 2024) [2024] KEELC 6898 (KLR)[2024] KEELC 6898 (KLR)17 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Kibiri v Kibunja (Sued as the personal representative of the Estate of Walter Kibunja Kiruri - Deceased) (Enviromental and Land Originating Summons E021 of 2022) [2024] KEELC 5093 (KLR)", Case Analysis (2024). Originating Summons dated 15th November 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5093/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.