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ELCAllowed· [2024] KEELC 5506 (KLR)
Akoth & 6 others v Joslyn; Broadleaf Developers Ltd (Interested Party) (Environment & Land Case 004 of 2023) [2024] KEELC 5506 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The applicants, the 1st, 2nd, 4th, 5th, 6th and 7th Plaintiffs in an adverse possession suit, applied by notice of motion dated 8th December 2023 seeking to re-open their case and be allowed to adduce oral evidence and produce documents. They explained that they had instructed their previous advocates, Omusundi and C.O Advocates, and had prepared to testify at the hearing on 24th October 2023, but learnt that they had allegedly signed an authority appointing the 3rd Plaintiff to testify on their behalf, so their statements were never placed on record. They denied signing the authority, blamed their former advocates for the failure to file statements and documents, and contended that substantive justice required that each be heard, without prejudice to the respondents who were yet to be heard. The application was opposed by the 2nd respondent, who argued the applicants sought to fill evidential gaps, had been ably represented, and had signed a letter of authority allowing the 3rd Plaintiff to sign pleadings on their behalf. The court, A.O. Ombwayo J, held that because adverse possession is founded on an individual's right to property rather than group rights, and is actionable in personam, each plaintiff has a cardinal right to be heard which cannot be extinguished by an authority appointing the 3rd Plaintiff to testify for all. No prejudice would befall the respondents, who could respond and cross-examine. The application was allowed: the case was re-opened for each plaintiff to be heard, with costs in the cause. Ruling delivered electronically on 26th July 2024.
Key legal issues
#01
Whether an authority authorizing one plaintiff to testify for all can bar the other plaintiffs from testifying
Holding
No - the individual right to be heard cannot be taken away by such an authority; each plaintiff must be heard on their adverse possession claim.
Reasoning
The court reasoned that adverse possession claims rest on individual rights to property and are actionable in personam. Each plaintiff therefore holds a cardinal right to be heard that cannot be waived or extinguished by an authority appointing the 3rd Plaintiff to testify on behalf of all. Allowing the application would cause no prejudice to respondents, who had not yet been heard and would be able to cross-examine the applicants and their witnesses.
Legal principles established
#- A claim of adverse possession is an individual, in personam right to property, not a group right, and each claimant has the cardinal right to be heard personally.
Court orders
#- 1.The plaintiffs' case is re-opened
- 2.Each of the Plaintiffs to be heard individually
- 3.Costs in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; inherent discretion to reopen a case in the interest of substantive justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akoth & 6 others v Joslyn; Broadleaf Developers Ltd (Interested Party) (Environment & Land Case 004 of 2023) [2024] KEELC 5506 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5506/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.