Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedOriginating Summons dated 11.12.2023· [2024] KEELC 6592 (KLR)

Full Gospel Churches of Kenya - Through its Registered Trustees v M'Ramare & another (Being Sued as the Legal Representatives of M'Ramare Nkunga alias Ramare Nkunga) (Enviromental and Land Originating Summons E014 of 2023) [2024] KEELC 6592 (KLR)

Environment and Land Court
2 October 2024
3,209 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff church, through its registered trustees, brought an originating summons dated 11.12.2023 claiming 0.202 ha out of L.R. No. Ntima/Ntakira/1129 by adverse possession, having purchased 0.29 ha from M'Rukaria M'Ramare under a sale agreement dated 11.3.2011, taken possession and built a school thereon. The 1st defendant defended and counterclaimed for eviction, asserting the sale was intermeddling with a deceased's estate, that the suit was res judicata given Succession Cause No. 422 of 2011, and that the plaintiff's occupation was permissive and interrupted by revocation of the grant. After viva voce evidence and written submissions, the court framed six issues. On capacity, it found the church duly registered and properly represented by its trustees, PW1's authority corroborated by other witnesses, and rejected the locus standi objection. On adverse possession, it held that although entry was permissive under the sale, the agreement became void for want of land control board consent within six months, whereupon possession became independent and hostile; the plaintiff had been in open, continuous occupation for over 12 years, and neither the succession cause nor the revoked grant interrupted time. The defendants made no effective entry nor filed eviction proceedings. The court held the defendants' rights were extinguished under Section 38 of the Limitation of Actions Act, and that retaining both land and purchase price would be unjust enrichment, proprietary estoppel barring reneging. The counterclaim failed. The court ordered the defendants to execute a transfer of the 0.202 ha within two months, with the Deputy Registrar to execute in default, and awarded costs to the plaintiff.

Key legal issues

#
01

Capacity of the plaintiff church to sue through its representatives

Holding

The church, a registered body, can sue and be sued through its registered trustees; PW1 had authority

Reasoning

The certificate of incorporation listed registered trustees and board minutes authorised the suit. PW2 and PW4, themselves trustees, corroborated PW1's authority. The 1st defendant, who counterclaimed for eviction against the church through its registered trustees, had not raised capacity in his defence. The objection on locus standi therefore lacked merit.

p. 5
02

Whether adverse possession was proved

Holding

Yes; entry was initially permissive under the 2011 sale, but on failure to obtain land control board consent the agreement became void and possession turned adverse; 12 years ran without interruption

Reasoning

The plaintiff bought the portion in 2011, took vacant possession and built a school with the defendants' knowledge. The sale became void for want of consent within six months, so possession was independent and hostile. No effective entry or eviction proceedings interrupted time; the succession cause did not interrupt. Defendants' rights were extinguished under Section 38 of the Limitation of Actions Act.

p. 6
03

Validity of the defendants' counterclaim for eviction

Holding

The counterclaim fails because the plaintiff's overriding adverse-possession rights had crystallised and retaining both land and money would be unjust enrichment

Reasoning

Having found the limitation period complete and no interruption, the defendants could not evict. The court invoked proprietary estoppel since the sale agreement had become void, holding that defendants cannot renege while retaining the purchase price used to buy alternative land.

p. 6

Legal principles established

#
  • Where a sale agreement of land becomes void for lack of land control board consent, continued possession by the purchaser is not referable to the agreement but becomes adverse to the owner's title
  • Filing of a succession cause does not interrupt time running for adverse possession absent effective entry or eviction proceedings

Court orders

#
  1. 1.The defendants are ordered to sign and execute a transfer form for land measuring 0.202 ha out of L.R No. Ntima/Ntakira/1129 within two months in favour of the registered trustees of the plaintiff church, in default of which the Deputy Registrar of the court shall execute the documents
  2. 2.Costs to the plaintiff

Authorities

#

Legislation

  • Limitation of Actions ActSections 7 and 38
  • Land Control ActSection 6(1)
  • Land (Perpetual Succession) Ordinance Cap 163null

Cases cited (19)

  • National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Limited
    [2002] 2 E. A 503
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited
    [2017] eKLR
  • East Africa Pentecostal Church (suing through the registered trustees) v Kirimi Hezekiel
    Meru ELC OS No.E001 of 2023
  • Eunice Mwaronja & another v Nkunja M'Twerandu
    Meru ELC No.31 of 2020
  • James Maina Kinya vs Gerald Kwendaka
    [2018]
  • Peter Kiruki M'Nkanata vs Sabela Ncekei Kirima (being sued as the legal representative of Riria Mboroki-deceased)
    null
  • Charles Ntiritu & 3 others v Stephen Robert Gitonga
    null
  • Joseph Kithinji v Christine N. Mbiti
    [2021] eKLR
  • Registered Trustee of the Presbyterian Foundation & 2 others vs County Council of Meru South & another
    (2012) eKLR
  • Gabriel Mbui V Mukindia Maranya
    (1993) eKLR
  • Samuel Miki vs Jane Njeri Richu
    C. A No 122 of 2007 as cited in Christopher Kioi & Another vs Winnie Mukolwe & 4 others (2018) eKLR
  • Wilson Kazungu Katana vs Salim Abdalla Bakshwein
    (2015) eKLR
  • Veronica Wanjira Maringa and others v ACK Buxton Diocese & Taita Taveta & another
    [2022] eKLR
  • Mtana Lewa v Kahindi Mwangadi
    [2015] eKLR
  • Wambugu vs Njuguna
    [1983] KLR
  • Maweu v Lin Ranching & Farming Society
    [1985] eKLR
  • Samuel Miki Waweru v Jane Njeri Richu
    [2017] eKLR
  • Public Trustee v Wanduru Ndegwa
    [1954] eKLR
  • Kipkoech Langat & another v Kipng'eno Arap Laboso
    [2011] eKLR
Jurisdiction invoked
Limitation of Actions Act, Sections 7 and 38 (adverse possession claim under originating summons)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Full Gospel Churches of Kenya - Through its Registered Trustees v M'Ramare & another (Being Sued as the Legal Representatives of M'Ramare Nkunga alias Ramare Nkunga) (Enviromental and Land Originating Summons E014 of 2023) [2024] KEELC 6592 (KLR)", Case Analysis (2024). Originating Summons dated 11.12.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6592/eng@2024-10-02

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