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ELCStruck OutOriginating Summons dated 23rd April 2014; Application dated 28th May 2014· [2014] KEELC 228 (KLR)

Cyril J Haroo & another v Uchumi Services Limited & 3 others [2014] KEELC 228 (KLR)

Environment and Land Court
12 September 2014
OAO. A. Angote
3,414 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land dispute because the owners used the wrong court form, showing procedure can decide a case.

What this practically means

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Executive summary

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The Plaintiffs commenced an Originating Summons on 24th April 2014 seeking a mandatory injunction restraining the 1st and 4th Defendants from evicting them from Kilifi/Madeteni 536, declarations that the 1st Defendant's title is invalid, fictitious and void, that the 1st Defendant has no legal interest in the property, and an order directing the 3rd Defendant to grant the Plaintiffs a new lease. The 1st, 2nd and 4th Defendants applied by notice dated 28th May 2014 to strike out the suit as bad in law, scandalous, frivolous, vexatious and an abuse of process, or alternatively for a stay pending related miscellaneous applications. They argued the Originating Summons procedure is unsuited to complex claims, and Order 37 Rule 8 of the Civil Procedure Rules expressly prohibits title cancellation under the Registered Land Act by Originating Summons. The Plaintiffs invoked the overriding objective, Article 159(2)(d) and Order 37 Rule 19(1), seeking conversion of the summons into a plaint. Angote J held that cancellation of a title requires full evidence, cross-examination and expert testimony and is expressly barred by Order 37 Rule 8 when brought by Originating Summons; that Order 37 Rule 19(1) applies only to causes lawfully begun under Order 37; and that a suit commenced contra-statute is incompetent and cannot be saved by the Oxygen Principle or Article 159(2)(d). The Originating Summons was struck out with costs, with liberty implicit for the Plaintiffs to institute a proper suit.

Key legal issues

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01

Whether the Originating Summons was the correct procedure for a claim seeking cancellation of title under the Registered Land Act

Holding

No. Order 37 Rule 8 expressly prohibits cancellation of title under the RLA by way of Originating Summons; such cancellation requires full evidence including cross-examination and expert testimony.

Reasoning

The court noted section 143(1) RLA empowers rectification for fraud or mistake, but proving fraud requires detailed examination of documents, cross-examination of those involved in processing the title and expert witnesses. Such complex and contentious questions of fact and law cannot be resolved on an Originating Summons, hence the express prohibition in Order 37 Rule 8.

p. 4
02

Whether the court could convert the Originating Summons into a Plaint under Order 37 Rule 19(1)

Holding

No. The rule presupposes lawful commencement by Originating Summons; a wrongly commenced cause cannot be converted.

Reasoning

The court held the rule contemplates proceedings lawfully commenced by Originating Summons, which may then for any reason be continued as if begun by plaint. It does not sanction conversion of a suit commenced contra-statute; the proper course is to nullify the defectively filed matter and allow a fresh, properly instituted suit.

p. 5
03

Whether the Oxygen Principle and Article 159(2)(d) could save the defective suit

Holding

No. Deviations that do not touch jurisdiction or occasion prejudice should not vitiate a suit, but this objection goes to how the court is moved - a substantive jurisdictional matter.

Reasoning

The court distinguished mere formal lapses from substantive procedural requirements. Commencing a title-cancellation claim by Originating Summons is contra-statute and prejudicial to the title-holder, who may be unable to join parties or seek indemnity in such proceedings. The court, following Court of Appeal authority, must exercise its powers under the Oxygen principle judicially and with explicable foundation.

p. 5

Legal principles established

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  • Order 37 Rule 8 of the Civil Procedure Rules prohibits the entertainment, by way of Originating Summons, of a claim for cancellation of a title registered under the Registered Land Act.
  • A suit filed contra-statute is incompetent and cannot be saved by Article 159(2)(d) of the Constitution or the Oxygen Principle.
  • Order 37 Rule 19(1) permits conversion of an Originating Summons into a Plaint only where the cause was lawfully begun under Order 37.

Court orders

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  1. 1.The Originating Summons dated 23rd April 2014 is struck out with costs

Authorities

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Legislation

  • Registered Land Act (repealed)Sections 120, 128, 133, 138, 143(1), 150
  • Civil Procedure RulesOrder 37 Rule 8; Order 37 Rule 19(1); Order 3
  • Civil Procedure ActSections 1A, 1B, 19
  • Constitution of KenyaArticle 159(2)(d)
  • Anti-corruption and Economic Crimes ActSection 55
  • Environment and Land Court Actnot specified

Cases cited (9)

  • Kibutiri Vs Kibutiri (1983) KLR 62
    (1983) KLR 62
  • Ngomeni Swimmers Ltd Vs Commissioner of Lands & 18 others (2013) e KLR
    (2013) eKLR
  • Siasi Pashua & another Vs Mbaruk Khamis Mohammed & another (2012) e KLR / Siasa Pasua & 2 Others Vs Mbaruk Khamis Mohamed & Another (2012) eKLR
    (2012) eKLR
  • Deepak Chamanlal Kemani & Another V KACC & 3 others (2010) eKLR
    (2010) eKLR
  • Richard Ncharpi Leiyagu, Civil Appeal No. 18 of 2013
    Civil Appeal No. 18 of 2013
  • Re Gilas (2) (1990) 43 Ch.D 391
    (1990) 43 Ch.D 391
  • Hunker Trading Company Limited Vs Elf Oil Kenya Limited, Civil Appeal No. 6 of 2010
    Civil Appeal No. 6 of 2010
  • Mradura Suresh Kenteria Vs Suresh Nanalal Kentevia, Civil Appeal No. 277 of 2005
    Civil Appeal No. 277 of 2005
  • Purpose Pty Limited Vs Council of the City of Sydney (2007) NSWLEL, 63
    (2007) NSWLEL 63
Jurisdiction invoked
Environment and Land Court Act and Civil Procedure Act/Rules; suit property registered under the Registered Land Act (repealed)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cyril J Haroo & another v Uchumi Services Limited & 3 others [2014] KEELC 228 (KLR)", Case Analysis (2014). Originating Summons dated 23rd April 2014; Application dated 28th May 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/228/eng@2014-09-12

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