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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 7262 (KLR)

Mwendia (Suing as the Personal Representative of the Estate of Mwendia Gichinga Maara) v Njuguna (Personal Representative of the Estate of Njuguna Wambuthi) (Environment & Land Case 16 of 2018) [2024] KEELC 7262 (KLR)

Environment and Land Court
28 October 2024
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court confirmed you can claim land by adverse possession through a plaint, not only an originating summons, and can amend pleadings to add key parties.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (Eboso J) on a notice of motion dated 14/7/2021 by the plaintiff, Godfrey Gichinga Mwendia, suing on behalf of the estate of the late Mwendia Gichinga Maara against the estate of the late Njuguna Wambuthi. The suit, filed on 22/1/2018 by way of plaint, sought a declaration of one acre of parcel Karai/Renguti/95 by adverse possession, an order directing the Land Registrar-Kiambu to excise and register that acre in trust for the plaintiff's estate, and costs. The motion sought leave to amend the plaint to join the District Land Registrar - Kiambu, deeming of the amended plaint as filed and served, and an order deeming the suit as initiated by originating summons. The respondent opposed, arguing lack of legal provision for converting a plaint into an originating summons, want of locus standi, want of jurisdiction, abuse of process and the provisions of Section 6 of the Civil Procedure Act. The court framed two questions: whether the criteria for leave to amend were satisfied, and whether it had discretion to deem the plaint an originating summons. Applying Order 8 rule 3(1) and Central Kenya Ltd v Trust Bank Ltd, the court found the amendment non-prejudicial since trial had not begun. Relying on Court of Appeal authority including Stephen Kaguku Mariba v Kibe Mariba and Chevron (K) Ltd v Harrison Charo Wa Shutu, it held that adverse possession may be pleaded by plaint, counterclaim or defence, and that conversion between plaint and originating summons is permissible. Prayers 1 and 3 were granted; the amended plaint was to be filed and served within 10 days, with costs in the cause.

Key legal issues

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01

Whether the criteria for leave to amend pleadings had been satisfied

Holding

Yes - the amendment merely joins the Land Registrar, does not change the cause of action, and trial has not commenced, so no prejudice arises

Reasoning

The court applied Order 8 rule 3(1) of the Civil Procedure Rules and the overriding principle in Central Kenya Ltd v Trust Bank Ltd that amendments should be freely allowed unless they prejudice the opposite side beyond compensation in costs. Perusal of the draft amended plaint showed the cause of action would not change; the only substantial change was joinder of the Land Registrar, against whom the reliefs in the plaint were directed. Trial had not commenced, so there were no proper reasons to deny leave.

p. 3
02

Whether the court has discretion to deem the plaint as an originating summons

Holding

Yes - superior court authority establishes that an adverse possession claim may be brought by plaint, and conversion between the two forms is permissible under Order 37 rule 10

Reasoning

Relying on Section 38 of the Limitation of Actions Act, Order 37 rules 7 and 10, and Court of Appeal decisions including Stephen Kaguku Mariba v Kibe Mariba and Chevron (K) Ltd v Harrison Charo Wa Shutu, the court held that although an originating summons is the ideal vehicle for an adverse possession claim, a plaint is a permissible alternative and a plaint can be converted into an originating summons and vice versa. The deeming order merely aligned the suit with the statutory requirements without causing prejudice.

p. 5

Legal principles established

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  • Amendments to pleadings are to be freely allowed unless the opposite side would be prejudiced or suffer injustice not compensable in costs
  • Although Section 38 of the Limitation of Actions Act and Order 37 rule 7 contemplate an originating summons for adverse possession, the plea can properly be brought by plaint, counterclaim or defence
  • An originating summons under Section 38 of the Limitation of Actions Act and Order 37 rule 7 can be converted into a plaint and vice versa under Order 37 rule 10

Court orders

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  1. 1.Leave granted to amend the plaint to include the District Land Registrar - Kiambu as a party (prayer 1)
  2. 2.The pleadings/suit deemed to have been initiated by way of originating summons (prayer 3)
  3. 3.The amended plaint to be filed and served within 10 days
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 3(1)
  • Civil Procedure RulesOrder 1 rules 9 and 10
  • Civil Procedure RulesOrder 24 rules 3, 4, 5 and 6
  • Civil Procedure RulesOrder 37 rule 7
  • Civil Procedure RulesOrder 37 rule 10
  • Civil Procedure Rules (former)Order XXXVI rules 3D and 10
  • Limitation of Actions ActSection 38
  • Civil Procedure ActSection 6

Cases cited (12)

  • Central Kenya Ltd. v Trust Bank Ltd & 5 Others
    [2000] eKLR
  • Gulam Mariam Noordin v Julius Charo Karisa
    Civil Appeal No 26 of 2015
  • Wabala v Okumu
    [1997] LLR 609 (CAK)
  • Bayete Co. Ltd v Kosgey
    [1998] LLR 813
  • Stephen Kaguku Mariba v Kibe Mariba
    Civil Appeal No 188 of 2002
  • Mucheru V. Mucheru
    [2000] 2 EA 455
  • Bhari V Khan
    [1965] EA 94
  • Kibutiri V Kibutiri
    [1982-88] 1 KAR 60
  • Kenya Commercial Bank V James Osebe
    [1982-88] 1 KAR 48
  • Salehmohamed Mohamed Vph Saldanha
    Kenya Supreme Court (Mombasa) Civil Case Number 243 of 1953 (UR)
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Njuguna Ndatho v Masai Itumu & 2 others
    Civil Appeal No 231 of 1999
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated in the judgment; inherent discretion under Order 8 rule 3(1) of the Civil Procedure Rules and Order 37 rule 10

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, "Mwendia (Suing as the Personal Representative of the Estate of Mwendia Gichinga Maara) v Njuguna (Personal Representative of the Estate of Njuguna Wambuthi) (Environment & Land Case 16 of 2018) [2024] KEELC 7262 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7262/eng@2024-10-28

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