[2018] KEELC 3208 (KLR)
The court found that since the respondent was deceased before being served with the suit papers, and upon the applicant's advocate's instructions, the suit could not proceed and was properly withdrawn. The withdrawal was necessary as there was no respondent to serve or contest the application, rendering the...
Source-derived case information.
- Citation
- [2018] KEELC 3208 (KLR)
- Parties
- Applicant: Gilbert Nkonge Erastus; Respondent: Henry Kimani M’Rimi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 300 of 2017
- Procedural Posture
- Originating Summons / Withdrawal Before Service
- Outcome
- Suit withdrawn before service due to respondent's death.
- Judges
- FM Njoroge
- Legal Topics
- Adverse Possession, Land Registration, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Nkonge Erastus
Applicant
Henry Kimani M’Rimi
Respondent
Procedural Posture
Originating Summons / Withdrawal Before Service
Legal Issues
- 1 Whether the applicant is entitled to one acre out of LR: MUTHAMBI/KANDUNGU/1516 under the doctrine of adverse possession.
- 2 Whether the suit should proceed given the respondent's death before service.
Ratio Decidendi
The court found that since the respondent was deceased before being served with the suit papers, and upon the applicant's advocate's instructions, the suit could not proceed and was properly withdrawn. The withdrawal was necessary as there was no respondent to serve or contest the application, rendering the proceedings incapable of being determined on merit. The court therefore marked the suit as withdrawn and ordered its removal from the list of pending cases.
Court Disposition
Suit withdrawn before service due to respondent's death.
Orders
- The suit is marked as withdrawn.
- The suit is to be removed from the list of pending ELC Cases at Chuka.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 300 OF 2017 (OS)
IN THE MATTER OF THE REGISTRATION OF LANDS ACT NO. 3 OF 2012 SECTION 28 (H)
AND IN THE MATTER OF ORDER 37 RULE 7 CIVIL PROCEDURE RULES
AND IN THE MATTER OF SECTION 38 OF THE LIMITATION OF ACTIONS ACT CHAPTER 22 LAWS OF KENYA
AND IN THE MATTER OF AN APPLICATION BY GILBERT NKONGE ERASTUS
THAT THE COURT DO MAKE DECLARATION THAT HE IS ENTITLED TO 1. 00 ACRES OUT OF LR: MUTHAMBI/KANDUNGU/1516 UNDER THE DOCTRINE OF ADVERSE POSSESSION
AND IN THE MATTER OF AN APPLICATION BY GILBERT NKONGE ERASTUS
THAT HE BE REGISTERED WITH 1. 00ACRES OUT OF LR; MUTHAMBI/KANDUNGU/1516 WHICH HE HAS ACQUIRED UNDER THE DOCTRINE OF ADVERSE POSSESSION
GILBERT NKONGE ERASTUS.............................APPLICANT
VERSUS
HENRY KIMANI M’RIMI..................................RESPONDENT
RULING
1. The applicant through his Originating Summons dated 20th November, 2017 sought an order declaring him to be owner of one acre out of land parcel Number MUTHAMBI/KANDUNGU/1516 through the doctrine of adverse possession.
2. On 29th May, 2018, Mr. Mark Muriithi told the court that the respondent was deceased and that by the time he died, he had not been served with the suit papers.
3. Mr. Muriithi told the court that he had instructions from advocate I.C. Mugo, the Applicant’s advocates, that the suit be withdrawn.
4. In the circumstances, this suit is marked as withdrawn.
5. The suit should be removed from the list of pending ELC Cases at Chuka.
6. It is so ordered.
Delivered in open Court at Chuka this 30th day of May, 2018 in the presence of:
CA:Ndegwa
Mugo present for the applicant
Defendant deceased
P.M. NJOROGE
JUDGE