Elizabeth Cheptoo Tuimising v Jane Cherono Ngeno & another [2016] KEELC 214 (KLR)
The bottom line
#A Kericho court gave a land claimant one final 14-day chance to fix her defective adverse possession suit, but only after paying Kshs. 25,000 in costs for the delay.
What this practically means
#Executive summary
#Key legal issues
#Competency of adverse possession suit lacking certified extract of register
The suit as filed was incompetent for want of the extract, but the court, in its discretion, allowed time to cure the defect.
Order 37 Rule 7(2) requires an adverse possession originating summons to be supported by an affidavit annexing a certified extract of title. The applicant never annexed one, despite two extensions of time (15 days, then 30 days). Although the delay was inordinate, the court found no irreparable injustice to the respondents that costs could not compensate, and allowed a final 14-day window on condition of payment of throwaway costs, failing which the striking-out would stand.
Whether the delay was inordinate and excusable
The delay was inordinate - the extract should have been filed with the suit, and none was filed despite extensive accommodation - but not so grave as to defeat the application.
Counsel's explanations were found unsatisfactory: he told the court on 25 January 2016 that he had applied for the Green Card the previous year, yet payment was made only that day, and no explanation was given for the absence of applicant and counsel on 4 April 2016. Nonetheless, guided by Article 159 and the overriding objective, and the principle that courts should be slow to deny a party a hearing, the court extended time with a costs sanction.
Injunction and balance of convenience
Court declined to assess prima facie case at interlocutory stage and decided on balance of convenience, ordering status quo with no further construction.
Applying the Giella vs Cassman Brown principles, the court noted the applicant appeared to have been in some possession and had begun constructing a house. It declined to weigh the relative merits at this stage and instead preserved the position as at the filing of the suit: continued use permitted, but no further construction or additional developments, subject to prior payment of throwaway costs.
Legal principles established
#- An Originating Summons for adverse possession not supported by an affidavit annexing a certified extract of title is incompetent under Order 37 Rule 7(2)
- A court may extend time to cure the defect where no injustice incapable of compensation by costs would be caused to the respondent, conditioned on payment of throwaway costs
Court orders
#- 1.Leave granted to the applicant to file the further supporting affidavit annexing the extract of the register (Green Card) within 14 days from the date of the ruling
- 2.Applicant to pay throwaway costs assessed at Kshs. 25,000/= within the same 14 days
- 3.If the affidavit is not filed and the costs not paid within 14 days, the suit will remain struck out
- 4.Status quo as at the filing of the Originating Summons to be maintained - no further construction of the house or additional developments, but the land may continue to be used as before, subject to payment of the throwaway costs
- 5.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Review of the court's own orders; Civil Procedure Act and Civil Procedure Rules, Order 37 (adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rotich v Chepkoskei & 3 others[2023] KEELC 20254 (KLR)28 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Elizabeth Cheptoo Tuimising v Jane Cherono Ngeno & another [2016] KEELC 214 (KLR)", Case Analysis (2016). Not stated in judgment (Originating Summons filed 27 March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/214/eng@2016-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.