[2007] KEHC 1191 (KLR)
The court determined that the multiple suits concerning LR No. Dagoretti/Riruta/1035 involve the same parties and subject matter, namely the dispute over ownership between the church (claiming adverse possession) and the heirs of the deceased (claiming inheritance and title). To prevent conflicting decisions and...
Source-derived case information.
- Citation
- [2007] KEHC 1191 (KLR)
- Parties
- Plaintiff: Bishop Zacharia Kahutu; Defendant: Mathew M. Dambala (Sued as Trustee of Kenya Evangelical Lutheran Church); Defendant: The City Council of Nairobi; Respondent: Njeri Wa Muthoni (Administratrix of the estate of Naomi Muthoni Ngure)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 287 of 2004
- Procedural Posture
- Civil Case / Ruling on Consolidation and Directions
- Outcome
- Suits consolidated for hearing; Originating Summons to be treated as plaint; proceedings to continue under Hccc287/04.
- Legal Topics
- Adverse Possession, Land Ownership Disputes, Succession and Inheritance, Consolidation of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bishop Zacharia Kahutu
Plaintiff
Mathew M. Dambala (Sued as Trustee of Kenya Evangelical Lutheran Church)
Defendant
The City Council of Nairobi
Defendant
Njeri Wa Muthoni (Administratrix of the estate of Naomi Muthoni Ngure)
Respondent
Procedural Posture
Civil Case / Ruling on Consolidation and Directions
Legal Issues
- 1 Who is the lawful owner of LR No. Dagoretti/Riruta/1035 given the competing claims of the church and the heirs of the deceased?
- 2 Should the suits relating to the same property be consolidated for hearing and determination?
- 3 Does the church's long possession amount to adverse possession under Kenyan law?
Ratio Decidendi
The court determined that the multiple suits concerning LR No. Dagoretti/Riruta/1035 involve the same parties and subject matter, namely the dispute over ownership between the church (claiming adverse possession) and the heirs of the deceased (claiming inheritance and title). To prevent conflicting decisions and promote judicial efficiency, the court ordered consolidation of the suits under Order XI of the Civil Procedure Rules. The court further directed that the Originating Summons in Hccc287/04 be treated as a plaint, and all proceedings to continue under this file. The application for directions was made by consent, and the court found that the application of 13 April 2007 had been...
Court Disposition
Suits consolidated for hearing; Originating Summons to be treated as plaint; proceedings to continue under Hccc287/04.
Orders
- The Originating Summons in Hccc287/04 shall be treated as a plaint.
- Suits Hccc287/04 and Hccc170/07 are consolidated for hearing under Order XI Civil Procedure Rules.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 287 of 2004
1. Land and Environmental Law Division
2. Subject of main suit: Land ownership
LR. Dagoretti/Ritruta/1035
i) Church bought land without title being transferred from deceased.
ii) Children of deceased inherit title and obtain new title deed.
iii) Issue – who is owner of land?
iv) Church in possession for 23 – 30 years.
3. Civil Practice and Procedure
Direction of court
i) That case file Hccc287/04 (Originating Summons) filed by church for Adverse Possession
and
ii) Hccc170/07 filled by child of deceased now holding title of 2006 be consolidated for hearing.
iii) Hcc768/07 not seen by court – If related be consolidated.
4. Advocates:
J.M. Ohaga of Ochieng Oduondo Advocates for the defendant/applicant – present
Martin D.V. Of Kamere & Co. Advocates for the plaintiff/Respondent – present
BISHOP ZACHARIA KAHUTU……...................................................................................................…PLAINTIFF
VERSUS
BISHOP ZACHARIA KAHUTHU
MATHEW M. DAMBALA (Sued as Trustees of
KENYA EVANGELICAL LUTHERANCHURCH............................................1ST DEFENDANT/APPLICANT
THE CITY COUNCIL OF NAIROBI............................................................................................2ND DEFENDANT
RULING
I: Civil Practice and Procedure
1. The parties seeks this court directions on the files before court.
2. The trustee of the Kenya Evangelical Lutheran Church (herein after referred to as the church ) alleged to have bought LR No. Dagoretti/Riruta/1035. The owner, a lady gave them the title deed and was paid Ksh.64,000/- as purchase price although the agreements may have been for Ksh.40,000/-. This sum as allegedly paid by installments.
3. The church never finalized the agreement nor transferred the properties to themselves. The children of the seller have now become of age. They inheritated the title in 2006. The church had by now filed Hccc287/04 for Adverse Possession. The church filed suit 170/07 for eviction of the church from the land. The church began to construct.
4. There is another suit Hccc768/07 that I have not had sight of.
5. The direction herein by this court is that the Originating Summons in 287/04 will be treated as a plaint.
That the suits be consolidated under order XI Civil Procedure Rules and heard at the same time. The application for direction was by consent agreement on 29 November 2005.
6. That the plaintiff in all the cases would be the:
Bishop Zakaria Kahutu
Martha M. Dambuki
Suing as trustee of the
Kenya Evangelical Lutheran Church Versus Njeri Wa Muthoni (Administratrix of the estate of Naomi Muthoni Ngure.
7. That the proceeding will proceed in Hccc287/04. The application of 13 April 2007 has been over taken by events by these orders
Dated this 21 day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
J.M. Ohaga of Ochieng Oduondo Advocates for the defendant/applicant – present
Martin D.V. Of Kamere & Co. Advocates for the plaintiff/Respondent – present