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ELCDismissedOriginating Summons dated 26th August 2013 (Malindi)· [2014] KEELC 472 (KLR)

Mary Kavuvu Maluki v Hamoud Rashid Azzan & another [2014] KEELC 472 (KLR)

Environment and Land Court
24 February 2014
OAO. A. Angote
858 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a land occupation claim because the claimant couldn't produce a title extract proving who actually owns the property.

What this practically means

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Executive summary

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This is a first-instance interlocutory ruling of the Environment and Land Court at Malindi (O. A. Angote, J) on the Plaintiff's Notice of Motion dated 26th August 2013, brought in an Originating Summons filed under Order 37 Rule 7(D) of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act. The Plaintiff claimed to have acquired by adverse possession a 100 x 100 feet portion of Land Parcel M.129 Makao Mapya Malindi, which she said she purchased from one Charo Kalama Ndoro in 1998, and sought a temporary injunction restraining the Defendants from entering, trespassing, demolishing her structure or interfering with her occupation pending determination of the suit, plus an order directing the OCPD and OCS Malindi to enforce compliance. The 1st Defendant deponed that plot M129 had been subdivided and portions 167 and 195 sold by his late father in 2005, and filed a preliminary objection that no cause of action was disclosed; the 2nd Defendant denied ownership, saying he was only a witness to the purchases. The court held that an adverse possession claim must be supported by the title or extract of title identifying the registered proprietor, and in the absence of such a document - particularly where both Defendants denied ownership - it could not compute the twelve-year limitation period or find a prima facie case with chances of success. The application was dismissed with costs on 24th February 2014; the main suit was not finally determined.

Key legal issues

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01

Whether a temporary injunction can issue in an adverse possession claim where no title extract is exhibited

Holding

No - the Plaintiff failed to establish a prima facie case with chances of success because the registered proprietor could not be ascertained

Reasoning

Order 37 Rule 7 requires a claim for adverse possession to be supported by the title or title extract identifying the registered proprietor. The Plaintiff annexed only a sale agreement of 1998 and a photograph of a structure. Since both Defendants denied being registered owners, the court could not compute the twelve-year period under Section 38 of the Limitation of Actions Act against the true owner. Without that, no prima facie case existed to sustain an interlocutory injunction.

p. 3

Legal principles established

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  • In a claim for adverse possession, a copy or extract of the title showing the registered proprietor of the suit property must accompany the Originating Summons or be in the Plaintiff's bundle of documents

Court orders

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  1. 1.Dismissal of the Plaintiff's Application dated 26th August 2013
  2. 2.Costs of the application to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7(D)
  • Limitation of Actions ActSection 38
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act

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, "Mary Kavuvu Maluki v Hamoud Rashid Azzan & another [2014] KEELC 472 (KLR)", Case Analysis (2014). Originating Summons dated 26th August 2013 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/472/eng@2014-02-24

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