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ELCAllowedNot stated in judgment (Originating Summons filed 14th April 2014)· [2015] KEELC 294 (KLR)

Andrew Kiplangat Bii v Charles Kipkurui Koech [2015] KEELC 294 (KLR)

Environment and Land Court
24 July 2015
MSMUNYAO SILA
368 words in judgment
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The bottom line

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A Kericho land court allowed a claimant to add an adverse possession claim to his case, but he pays the costs for poor drafting.

What this practically means

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Executive summary

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The applicant sued by Originating Summons filed on 14th April 2014 under Order 37 Rules 3, 14 and 15 of the Civil Procedure Act, claiming that he had acquired title to 0.35 acres of land parcel Kericho/Kiptere/3873 and should be registered as proprietor. By an application dated 14th July 2015, he sought leave to amend the Originating Summons to add a question whether he was entitled to ownership of the 0.35 acres by way of adverse possession. The respondent did not oppose the application. Munyao Sila J allowed the amendment but drew attention to two defects in the draft amended Originating Summons: first, the title did not cite Order 37 Rule 7, the provision governing the procedure for adverse possession claims, which should be added to the heading; secondly, the draft bore two dates when a pleading may bear only one date, with the date of amendment shown separately. The court directed that the Amended Originating Summons, supported by an appropriate affidavit, be filed and served within 14 days, and gave the respondent liberty to file a Replying Affidavit in the usual manner. The applicant was ordered to shoulder the costs of the application. The ruling is a short interlocutory decision turning on the court's discretion over amendments, with no authorities cited and no contested substantive determination of the adverse possession claim, which remains for trial.

Key legal issues

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01

Whether an unopposed amendment adding an adverse possession claim should be allowed

Holding

Allowed; the court had no problem permitting the amendment but directed the applicant to cure drafting defects

Reasoning

The court perused the draft amended Originating Summons and found the amendment sought only added a question on adverse possession. As the respondent did not oppose it, the court allowed the amendment, while flagging two defects: the title did not reflect Order 37 Rule 7 under which adverse possession claims are brought, and the draft bore two dates when only one date plus the date of amendment is permissible.

p. 2

Legal principles established

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  • A party may amend pleadings to add an adverse possession claim where the amendment is unopposed, subject to procedural correctness of the amended pleading

Court orders

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  1. 1.Application to amend the Originating Summons allowed
  2. 2.Amended Originating Summons supported by an appropriate affidavit to be filed and served within 14 days
  3. 3.Respondent at liberty to file a Replying Affidavit to the Amended Originating Summons in the usual manner
  4. 4.Applicant to shoulder the costs of the application

Authorities

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Legislation

  • Civil Procedure ActOrder 37 Rules 3, 14 and 15
  • Civil Procedure ActOrder 37 Rule 7
Jurisdiction invoked
Order 37 Rules 3, 14 and 15 of the Civil Procedure Act (Originating Summons procedure)

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, "Andrew Kiplangat Bii v Charles Kipkurui Koech [2015] KEELC 294 (KLR)", Case Analysis (2015). Not stated in judgment (Originating Summons filed 14th April 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/294/eng@2015-07-24

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