Werimo (Suing as the Legal Representative of the Estate of Deceased Werimo Otwila) v Okwomi & 6 others (Environment & Land Case 30 of 2015) [2025] KEELC 640 (KLR)
The bottom line
#A widow who sued over Busia land without a grant of letters of administration lost, and her family now has 90 days to vacate the property.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a widow suing as legal representative of a deceased's estate
The Plaintiff lacked locus standi as she had not obtained a grant of letters of administration; her suit was incompetent and struck out.
The suit land was a sub-division of land first registered in the name of the deceased. The Plaintiff, as the wife of the deceased, was required to first obtain a limited or full grant to clothe her with capacity to sue for the estate. By her own pleadings the grant was never obtained due to an objection in the succession cause. Citing Otieno v Ougo, the court held the suit incompetent from inception.
Limitation of a fraud-based claim in land
The fraud claim was statute barred, having been filed 37 years after the alleged fraud in 1977, and section 26 of the Limitation of Actions Act was not invoked or proved.
Fraud is a tort and must be filed within three years under section 4(2) of the Limitation of Actions Act. The register showed the suit land was created on 1st December 1977, so any fraud was committed then. The suit filed in 2014 was hopelessly time barred. The Plaintiff neither pleaded nor proved when she discovered the fraud to invoke section 26.
Res judicata
The suit was res judicata, the same claim over the same land having been litigated and finally determined in Busia SP MCC No 590 of 1994 between the Plaintiff's sons and the 2nd Defendant.
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties or those claiming under them, heard and finally decided by a competent court. The Plaintiff's sons, whom she claims under, were defendants in the 1994 case over the same land which was fully heard and determined, and their attempt to appeal was dismissed by Mbito J in 2003. Explanation 6 and Explanation 4 of section 7 applied.
The 5th Defendant's counter-claim for eviction and injunction
The counter-claim was proved and allowed; the Plaintiff and her family were ordered to vacate within 90 days or be evicted, and were permanently injuncted.
The 5th Defendant holds a title issued on 11th December 2008 and, as registered proprietor, is entitled under section 24 of the Land Registration Act to evict trespassers and to be injuncted against interference. The Plaintiff's claim having collapsed, her occupation was unjustified and constituted a continuing trespass. Her adverse possession plea was not her claim and could not stand against occupation in defiance of a court order.
Whether the suit land is public land held in trust by the County Government of Busia
The court found the suit land to be private property belonging to the 5th Defendant, not public land; the 5th Defendant's earlier title took priority over the 6th Defendant's 2018 registration.
The claim that the land was public property was raised only in the 6th Defendant's witness statement and not pleaded, and cases are decided on the pleadings. The register showed the land had always been private since 1977 and there was no evidence how it was converted to public land. Where two competing titles exist, the one registered earlier (the 5th Defendant's, 11th December 2008) takes priority over the later one (6th December 2018).
Legal principles established
#- An administrator is not entitled to bring any action as administrator before taking out letters of administration; an action filed without a grant is incompetent from inception
- An action founded on tort, including fraud, must be filed within three years from the date the cause of action accrued
- Where there are two competing titles, the one registered earlier takes priority
- Every continuance of a trespass is a fresh trespass giving rise to a new cause of action from day to day
Court orders
#- 1.The Plaintiff's suit is dismissed with costs to the 2nd, 5th and 6th Defendants
- 2.The land parcel No Marachi/Kingandole/1117 is declared not to be public land held in trust by the 6th Defendant on behalf of the public
- 3.The 5th Defendant's counter-claim is allowed: the Plaintiff, her family members, employees, agents and all those claiming under her shall within 90 days of the judgment remove their structures and vacate from land parcel No Marachi/Kingandole/1117 or be evicted therefrom
- 4.The Plaintiff, her family members, employees, agents and all those claiming under her are permanently injuncted from interfering with the 5th Defendant's occupation and use of land parcel No Marachi/Kingandole/1117
- 5.The Plaintiff shall meet the 5th Defendant's costs of the counter-claim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution); not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Werimo (Suing as the Legal Representative of the Estate of Deceased Werimo Otwila) v Okwomi & 6 others (Environment & Land Case 30 of 2015) [2025] KEELC 640 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/640/eng@2025-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.