William Kiprop Kimaiyo v Musa Kipchirchir Arusei [2016] KEELC 33 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the defendants' counterclaim in 361 of 2006 is a claim based on adverse possession
Yes; the counterclaim as amended seeks a declaration of ownership of Uasin Gishu/Illula/108 (subdivided into 470, 471, 472) through adverse possession, though it is unaccompanied by a verifying affidavit.
The court examined the further amended statement of defence and counterclaim amended on 14.9.2012 pursuant to a court order of 05.9.2012 and found it pleads adverse possession of the estate of Kimoi Kimaiyo since 1983. The counterclaim lacks a verifying affidavit as required by law, making it defective, but whether fatally defective cannot be determined without hearing both parties; that issue was not before the court.
Whether the originating summons are an abuse of the process of the court and should be struck out or stayed
The suits are not to be struck out, but should be stayed under section 6 of the Civil Procedure Act since the matters in issue are directly and substantially in issue in the part-heard Eldoret HCCC No. 361 of 2013.
The court noted striking out is a draconian remedy of last resort. Section 6 bars trial of any suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title. It was not disputed that the dispute in the subsequent suits is the same dispute as in the part-heard suit 361 of 2013; hence stay was the appropriate discretion.
Whether the four suits should be consolidated
Consolidation declined because directions have not been taken in the originating summons and consolidation cannot be used to cure defects in the counterclaim.
The respondent sought consolidation rather than stay, arguing it would save judicial time and cause no prejudice. The court held that directions had not been taken in the Originating Summons Nos. 111, 112 and 113 of 2015, and consolidation could only follow directions and withdrawal of the counterclaim. The court declined to exercise its discretion in the respondent's favour.
Legal principles established
#- Where the matter in issue in a subsequent suit is directly and substantially in issue in a previously instituted suit between the same parties, the court shall stay the subsequent suit under section 6 of the Civil Procedure Act
- A claim for adverse possession may properly be commenced by originating summons, but commencing it by counterclaim is not fatal given Article 159(2)(d) of the Constitution and section 19 of the Environment and Land Court Act
- A counterclaim should be accompanied by a verifying affidavit; failure renders it defective, though whether fatally so is determined after hearing both parties
Court orders
#- 1.The subsequent suits (Originating Summons Nos. 111, 112 and 113 of 2015) and the claim for adverse possession are stayed until Eldoret E & L Case No. 361 of 2013 is heard and determined
- 2.Stay to lapse if the defendant withdraws the counterclaim in 361 of 2013
- 3.Consolidation declined; may only be considered after directions are taken and after withdrawal of the counterclaim
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, 2010; sections 3A, 5 and 6 of the Civil Procedure Act; Environment and Land Court Act, section 19
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kiprop Kimaiyo v Musa Kipchirchir Arusei [2016] KEELC 33 (KLR)", Case Analysis (2016). Eldoret H.C.C.C No. 111 of 2015 (Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/33/eng@2016-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.