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Court of AppealDismissedCourt of Appeal Civil Appeal (number not stated in judgment)· [1994] KECA 83 (KLR)

Lali S. Lali & 3 others v Stephen M. Wachira & 2 others [1994] KECA 83 (KLR)

Court of Appeal of Kenya
20 September 1994
2,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that adverse possession claims must follow the exact required procedure, or the entire case can be struck out.

What this practically means

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Executive summary

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The appellants, alleging occupation of land parcel Chembe/Kibabamushe/427 since 1958, filed an Originating Summons in the High Court seeking adverse possession declarations, rectification of the register under section 143 of the Registered Land Act, and ancillary orders against the registered proprietors. The second respondent applied to strike out the summons on the ground that it was not properly within order XXXVI of the Civil Procedure Rules. On 11 August 1993 Justice Effie Owuor struck out the summons with costs, holding that prayers for rectification under section 143 were expressly excluded from Originating Summons procedure by order XXXVI rule 3F, and that in any event the issues involved serious contested questions of fact and law unsuitable for Originating Summons. The appellants appealed on seventeen grounds, arguing that the judge should have ordered the proceedings to continue as if begun by plaint under rule 10 of order XXXVI. The Court of Appeal (Gachuhi, Gicheru and Kwach JJA) dismissed the appeal on 20 September 1994. It held that an adverse possession claim under section 38 of the Limitation of Actions Act must be brought by Originating Summons with no discretion, but rule 10 conversion to plaint is unavailable where the summons contains matters expressly excepted by rule 3F. Since rectification was the linchpin of the claim and could not be severed, the summons was hopelessly outside order XXXVI and an abuse of process. Applying Dyson v Attorney General, the court found the cause of action incontestably bad and the striking out proper, dismissing the appeal with costs to the respondents.

Key legal issues

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01

Whether an Originating Summons under order XXXVI may include prayers for rectification of the register under section 143 of the Registered Land Act

Holding

It may not; rule 3F expressly excludes applications under section 143 from Originating Summons procedure, and an Originating Summons containing such prayers is outside the scope of order XXXVI and may be struck out

Reasoning

Rule 3F excepts applications under sections including 143 of the Registered Land Act from being made by Originating Summons. Because the appellants' claim to adverse possession depended on prior rectification of the register, the rectification prayers were the linchpin of the summons; expunging them would have left nothing of the claim. The summons was therefore hopelessly outside order XXXVI and an abuse of process, justifying its striking out.

p. 5
02

Whether the court should have converted the Originating Summons to a plaint under rule 10 of order XXXVI

Holding

No; rule 10 applies only where the summons is properly within order XXXVI in the first instance

Reasoning

While a claim for adverse possession must be brought by Originating Summons regardless of complexity, and rule 10 permits continuation as if begun by plaint where issues are disputed, that discretion presupposes a summons properly within order XXXVI. A summons invoking excepted matters is illegal, and the rule 10 discretion cannot cure it.

p. 5
03

Whether striking out the action without trial was justified despite the sparing use of that power

Holding

Yes; the cause of action was obviously and almost incontestably bad, amounting to an abuse of legal procedure

Reasoning

Citing Dyson v Attorney General, the court acknowledged the power to arrest an action without trial should be sparingly used, but applied the exception for actions that are obviously and almost incontestably bad. Since the appellants could not claim against the Government of Kenya and subsequent titles were unencumbered, the action was incontestably bad and its striking out was proper.

p. 5

Legal principles established

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  • An application under section 38 of the Limitation of Actions Act claiming entitlement to land by adverse possession must be brought by Originating Summons, and there is no discretion in the matter regardless of the complexity of the issues
  • Rule 10 of order XXXVI permitting continuance as if begun by plaint is only available where the Originating Summons is in the first instance properly within order XXXVI; a summons containing matters expressly excepted by rule 3F cannot be salvaged by that route
  • A claim to land by adverse possession against a registered proprietor whose title derives from the Government is unsustainable where rectification of the register under section 143 of the Registered Land Act is a prerequisite and cannot be sought within the Originating Summons

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
First appellate jurisdiction under the appellate provisions of the Constitution/statute (not expressly invoked in the judgment)

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, "Lali S. Lali & 3 others v Stephen M. Wachira & 2 others [1994] KECA 83 (KLR)", Case Analysis (1994). Court of Appeal Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/83/eng@1994-09-20

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