[2017] KEELC 3128 (KLR)
The suit was dismissed on two grounds: first, the plaintiff failed to serve the defendant despite obtaining an order for substituted service, thereby failing to comply with court directions and undermining the timely disposal of proceedings. Second, the plaintiff admitted that the defendant was registered as owner...
Source-derived case information.
- Citation
- [2017] KEELC 3128 (KLR)
- Parties
- Plaintiff: Wilfred Miriti M’Murika; Defendant: Benson Nyaga Mwiandi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 49 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Dismissal for Want of Prosecution and Lack of Statutory Period for Adverse Possession
- Outcome
- suit dismissed
- Legal Topics
- Adverse Possession, Statutory Limitation Period, Service of Process, Dismissal for Non Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Miriti M’Murika
Plaintiff
Benson Nyaga Mwiandi
Defendant
Procedural Posture
Land and Property Suit / Ruling on Dismissal for Want of Prosecution and Lack of Statutory Period for Adverse Possession
Legal Issues
- 1 Whether the suit should be dismissed for failure to serve the defendant despite court orders.
- 2 Whether the suit for adverse possession is tenable where the statutory period of 12 years has not lapsed since registration of the land in the defendant's name.
Ratio Decidendi
The suit was dismissed on two grounds: first, the plaintiff failed to serve the defendant despite obtaining an order for substituted service, thereby failing to comply with court directions and undermining the timely disposal of proceedings. Second, the plaintiff admitted that the defendant was registered as owner of the suit land less than 10 years before the suit was filed, whereas the law requires at least 12 years of adverse possession for such a claim to be tenable. The court held that the cause of action was premature and unsustainable, and retaining such suits would only contribute to judicial backlog.
Court Disposition
suit dismissed
Orders
- This suit is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 49 OF 2017
FORMERLY MERU ELC CASE NO.09 OF 2014
WILFRED MIRITI M’MURIKA…………………..………....PLAINTIFF
VERSUS
BENSON NYAGA MWIANDI…………………………….DEFENDANT
RULING
1. This suit was filed on 16th May, 2014. It seeks judgment against the defendant that the plaintiff is entitled to be registered as the proprietor of land parcel No. MWIMBI/MURUGI/2826 by way of adverse possession.
2. The defendant has never been served with any suit papers.
3. On 14. 7.2015, almost 3 years ago, the plaintiff obtained an order directing that summons in this suit be effected by way of substituted service. Almost 3 years down the line, this order has never been implemented.
4. This court has on several occasions directed the plaintiff to serve the defendant so that apposite directions could be given by the court. All sorts of excuses have been given as to why the defendant has never been served. This included an affidavit of service swearing that the process server had served the defendant through his brother who had declined to acknowledge service.
5. Parties were required to come for pre-trial conferencing and directions on 4. 4.2017. The plaintiff was in court but his advocate was absent. Once again, it was made clear that the defendant had not been served.
6. I find it meritorious for this court to dismiss this suit for two reasons.
7. The first one is that having, at his instigation, obtained an order to serve the defendant by way of substituted service way back on 14. 7.2015, the plaintiff has failed to implement that order. Court orders cannot be granted in vain. They ought to be obeyed. It is the duty of this court to ensure timely disposal of proceedings before it. I find that the plaintiff who has a duty to assist the court to further the overriding objective to facilitate the just, expeditious and proportiate resolution of this dispute, has failed to uphold his duty. For this reason, this suit merits dismissal.
8. The 2nd reason why this suit merits dismissal is buttressed by the contents of the plaintiff’s pleadings.
9. In his supporting affidavit sworn on 16th May, 2014, at paragraph 8, the plaintiff avers as follows:
“8. THAT a search in respect of the said parcel of land shows that it was registered in the name of the defendant in 2004 (a copy of the certificate of official search is annexed herein and marked “MMBI”)
10. By the plaintiff’s own admission and as confirmed by the certificate of official search, the disputed land was registered in the name of the defendant on 2nd September, 2004. This suit was filed on 21st May, 2014. This is less than 10 years from the time the suit land was registered in the name of the defendant. The period required for adverse possession is 12 years.
11. I opine that the cause of action filed against the defendant is untenable. If a party moves the court through Originating Summons to obtain land by way of adverse possession, the starting point must be the period the dessessor has occupied the suit land. Then all other conditions must be satisfied. If the person against whom the suit is filed has been an owner for less than the 12 years required for adverse possession to accrue, then the suit is untenable and only awaits dismissal at some future time. Retaining such suits in the inventory of pending cases only exacerbates the veritable problem of clogging up the judicial system.
12. Where a party has admitted in his pleadings that the statutory period required for adverse possession to accrue has not matured, a court of law is entitled to move appropriately. I find that this suit merits dismissal for the reasons proffered herein.
13. This suit is dismissed.
14. It is so ordered.
Delivered in open court at Chuka this 5th day of April, 2017 in the presence of:
CA: Ndegwa
Wilson Miriti M’Murika - plaintiff
P.M. NJOROGE,
JUDGE.