Kimotho v Mushomba (Being sued as the administrator of the Estate of Reuben Mushomba Njoroge alias Reuben Mushomba - Deceased) (Environment & Land Case E004 of 2023) [2025] KEELC 1085 (KLR)

The court accepted that the Plaintiff continuously grew crops on 4.5 acres, but held that the Vendor had not obtained letters of administration and thus could not lawfully dispose of the land. As an advocate acted for the Plaintiff, he was presumed aware of the Vendor's incapacity. Because the entry rested on an unlawful contract, time for adverse possession did not commence and the claim in Prayers (a) and (b) failed.

The court noted the claim was not anchored on Sections 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. Relying on Mtana Lewa and Obado v Oyugi, the court invoked Section 3A of the Civil Procedure Act and Article 159(2)(d) to resolve the substantive question despite the procedural irregularity, which had not even been raised by the Defendant.

The court found the Plaintiff proved payment of Kshs.300,000/- by banker's cheque into a joint account held by the registered owner and his wife Esther. No evidence was adduced of payment of the balance of Kshs.330,000/-. Since the Vendor lacked legal capacity, the court ordered refund of the proved amount with interest at court rates from the date of payment.

Section 27 of the Civil Procedure Act vests costs in the court's discretion. Because the contract for disposal of the suit property was unenforceable, the court declined to follow the general rule that costs follow the event and directed each party to bear its own costs.