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ELCDismissedELC Case of 2019 (Originating Summons, Mwerua/Kiandai/282) — Notice of Motion dated 22nd August 2023

Joseph Kariuki Thuo & Another v Emily Nuna Ngaruiya (originally sued as the personal representative of the Estate of Vincent Ngaruiya Karau); Jane Nyanjuru Thuo (Intended Respondent/Applicant)

Environment and Land Court
22 February 2024
2,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land title lost through 12 years of adverse possession cannot be passed on to heirs through succession.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (J. M. Mutungi, ELC Judge) determines a Notice of Motion dated 22nd August 2023 by Jane Nyanjuru Thuo, the Intended Respondent, seeking substitution of the deceased Respondent Emily Nuna Ngaruiya, orders of inhibition and injunction over title No. Mwerua/Kiandai/282, and review or setting aside of the judgment of 12th February 2021 and decree of 18th January 2022, by which the Applicants had been declared owners of the suit land by adverse possession in an undefended suit. The Applicant argued that the Applicants misled the court about the Respondent's whereabouts despite a March 2019 meeting at the Chief's office, that substituted service by newspaper advertisement could not have reached the 95-year-old Respondent who died on 27th December 2019, and that she inherited the property through succession in February 2022. The Applicants countered that substituted service was duly granted and effected, that the judgment had been executed, and that the Applicant lacked locus standi and was guilty of delay. The court framed two issues: whether conditions for review or setting aside were met, and whether the Applicant should be joined. It held that substituted service was regular and not confined by age or infirmity, that the judgment was regularly obtained, and that notices and demands since 1981 never interrupted adverse possession — only an eviction suit would have, and such a suit would be statute-barred under Section 7 of the Limitation of Actions Act. The Respondent's extinguished title could not pass by succession. The application was dismissed with no order for costs, each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Intended Respondent/Applicant has satisfied the conditions to warrant a review and/or setting aside of the Judgment of 12th February 2021
  2. 2.Whether the Intended Respondent/Applicant should be joined and/or substituted as a party to the proceedings

Key legal issues

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01

Whether substituted service on an elderly Respondent was proper

Holding

Service was regular; leave for substituted service was properly granted and the mode is not restricted by age or infirmity

Reasoning

The Applicants, unaware of the Respondent's whereabouts, obtained leave on 4/7/2019 and served by advertisement in the Daily Nation on 16/8/2019, deemed served by 30/8/2019. The court held the discretion to allow substituted service was properly exercised and cannot be faulted merely because the Respondent was 95 years old and unlikely to see the advert.

p. 4
02

Whether there was sufficient reason to review or set aside the judgment

Holding

No sufficient reason; the judgment was regularly obtained after due process

Reasoning

The suit proceeded as undefended after regular substituted service. The Applicant's complaint centred on improper service, but the court found service regular and the judgment regular. The alleged concealment of the Respondent's whereabouts and age did not supply sufficient reason for review, and the judgment had already been executed.

p. 5
03

Whether the Intended Respondent could inherit the suit land

Holding

No; the Respondent's title had been extinguished by adverse possession before transmission

Reasoning

The Applicants had occupied and developed the land since 1978. Demands and notices in 1982, 1992, 2000, 2005 and 2014 did not interrupt possession; only an eviction suit would, and any such suit would have been statute-barred after 12 years. The title therefore could not pass by succession to the Intended Respondent.

p. 4

Legal principles established

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  • An order for substituted service is not confined to any class of persons; the test is whether the court was satisfied that substituted service was appropriate
  • Only the institution of a suit for eviction interrupts the running of adverse possession; mere notices or demands do not
  • A title extinguished by adverse possession cannot be transmitted to a beneficiary through succession
  • An action to recover land after twelve years from accrual of the right of action is statute-barred under Section 7 of the Limitation of Actions Act

Court orders

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  1. 1.The Notice of Motion application dated 22nd August 2023 is dismissed
  2. 2.No order for costs; each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Inherent discretion of the Environment and Land Court to review/set aside its judgment and to order joinder/substitution under the applicable civil procedure rules

Relief refused

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Substitution of the Respondent with the Intended Respondent

No valid title subsisted to inherit; judgment was regularly obtained

p. 5

Review/setting aside of the judgment dated 12th February 2021 and decree dated 18th January 2022

Service by substituted service was regularly done after leave of the Court; no sufficient reason for review

p. 5

Orders of inhibition and injunction over title No. Mwerua/Kiandai/282

The application itself was dismissed in its entirety

p. 5

Costs

No order for costs; each party will bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that I find no merit in the intended Respondent’s application and I hereby order the Notice of Motion application dated 22nd August 2023 dismissed. I make no order for costs and I direct that each party will bear their own costs.
p. 5Disposition and costs
I find that the Judgment was regularly obtained after due process. I hold there is no suficient reason adduced to warrant a review of the Judgment.
p. 5Review standard
an order for substituted service is not restricted and/or confined to any specific group of persons, be they elderly and/or under any infirmity.
p. 4Substituted service
The title held by the Respondent had become extinguished by virtue of adverse possession by the Applicants and there was no valid title that the Intended Respondent/Applicant could legally inherit from the Respondent.
p. 5Effect of adverse possession on succession

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Kariuki Thuo & Another v Emily Nuna Ngaruiya (originally sued as the personal representative of the Estate of Vincent Ngaruiya Karau); Jane Nyanjuru Thuo (Intended Respondent/Applicant)", Case Analysis (2024). ELC Case of 2019 (Originating Summons, Mwerua/Kiandai/282) — Notice of Motion dated 22nd August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/826/eng@2024-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.