William Maiyo v Musa K. Arusei [2016] KEELC 46 (KLR)

The court noted that the proper manner of commencing an adverse possession claim is by originating summons, but held that proceedings can be simplified by directions converting the originating summons into a plaint and the replying affidavit into a defence. Article 159(2)(d) of the Constitution and section 19 of the Environment and Land Court Act require the court to do substantive justice expeditiously without undue regard to technicalities, so the counterclaim mode is not fatal. However, the court noted the counterclaim was not supported by any affidavit as required by law, and whether the defect is fatal could only be determined after hearing both parties; that issue was not before the court.

The court acknowledged that multiplicity of suits on the same subject matter between the same parties constitutes abuse of process, but held that striking out pleadings is draconian and a last resort. Since a previously instituted suit, Eldoret E & L Case No. 361 of 2013, is pending and part-heard between the same parties over the same land, section 6 of the Civil Procedure Act mandated a stay. The stay was to operate unless the defendant withdrew his counterclaim, which the court found duplicated the originating summons relief.

The respondent proposed consolidation as the convenient course, but the court found that directions had not been taken in Originating Summons Nos. 111, 112 and 113 of 2015, so consolidation could only occur after directions and after withdrawal of the counterclaim. The court also held that it could not allow consolidation to be used to cure defects in the counterclaim, if any; the respondent's only option if he believed the counterclaim defective was to withdraw it.