Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutOriginating Summons dated 22nd August 2011 (Kilifi/Mtondia 116)· [2016] KEELC 692 (KLR)

Mwalimu Kalume Charo & another v Kifalu Karisa Kitsao [2016] KEELC 692 (KLR)

Environment and Land Court
22 July 2016
2,568 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court struck out a land dispute because cancellation of a title deed cannot be sought through the Originating Summons procedure used by the plaintiffs.

What this practically means

#

Executive summary

#
The Plaintiffs, who occupy parcel Kilifi/Mtondia/116, filed an Originating Summons seeking cancellation of the Defendant's Title Deed (issued 4th May 2007) and a declaration that they are the legal or beneficial owners, contending that the land was first allocated to the 1st Plaintiff's father, Kalume Charo, by the Settlement Fund Trustees, and that the Defendant's father fraudulently procured registration in 2005, with the Defendant inheriting in 2007, concealing the fraud by omitting entries 1-4 from the title. The Defendant asserted that his late father was lawfully allocated and registered as owner and later transferred the land to him. By consent, the proceedings in Kilifi PMCC No. 211 of 2009 were produced in evidence. The court first considered whether the claim could proceed by Originating Summons. Following Court of Appeal authority discouraging unrestricted use of originating summons in contentious matters, and noting that Order 37 Rule 8 expressly excludes claims under section 143 of the Registered Land Act (repealed) from that procedure, the court held that the fraud-based cancellation claim was complex and could not be determined by Originating Summons. The alternative adverse possession claim also failed: the Defendant was registered on 4th May 2007 and twelve years had not elapsed by the time of filing in 2011. The court did not determine the locus standi objection. The suit was struck out with costs to the Defendant on 22nd July 2016.

Key legal issues

#
01

Whether a claim for cancellation of title under section 143 of the RLA can proceed by Originating Summons

Holding

It cannot; the claim is expressly excluded from the Originating Summons procedure and the fraud allegations raise complex disputed facts

Reasoning

The court traced the Court of Appeal authorities discouraging unrestricted use of originating summons in contentious matters. Order 37 Rule 8 permits RLA applications by originating summons but prohibits claims under sections 120, 128, 133, 138, 143 and 150. Cancellation of the Defendant's title required inquiry into alleged fraud, rendering the procedure inappropriate.

p. 5
02

Whether the Plaintiffs proved adverse possession

Holding

They did not; the Defendant's registration was on 4th May 2007 and twelve years had not elapsed by filing

Reasoning

Although Order 37 Rule 7 allows applications under Order 38 of the Limitation of Actions Act by originating summons, the claim fails on the facts. The court computed the limitation period from the date of the Defendant's registration as proprietor, which was less than twelve years before the 2011 filing.

p. 5
03

Locus standi of the 1st Plaintiff to claim through his deceased father's allocation

Holding

Argued by the Defendant but not determined; the suit was struck out on procedure before reaching this issue

Reasoning

The Defendant submitted that no right to a deceased person's property can be established without letters of administration, and that the 1st Plaintiff did not sue as administrator. The court did not make a finding on locus standi, disposing of the suit instead on the originating summons procedure and limitation grounds.

p. 3

Legal principles established

#
  • Cancellation of a title deed or certificate of lease is not a simple issue and cannot be decided by way of originating summons
  • A suit may only be commenced by Originating Summons where the law expressly provides or where facts are simple and undisputed; Order 37 Rule 8 prohibits originating summonses for claims under sections 120, 128, 133, 138, 143 and 150 of the Registered Land Act
  • Adverse possession runs from the date of registration of the proprietor, and twelve years must lapse before suit

Court orders

#
  1. 1.The suit is struck out with costs to the Defendant

Authorities

#

Legislation

  • Civil Procedure RulesOrder 37 (including Rules 7 and 8)
  • Registered Land Act (repealed)Section 143(1) (also sections 120, 128, 133, 138, 150 referenced)
  • Limitation of Actions ActSection 38

Cases cited (6)

  • Mukesh Man Chand Shah & Another v Priyat Shah & Another
    Mombasa Civil Appeal No. 39 of 2014
  • Wakf Commissions v Mohamed Bin Umaya Bin Abdulmanji Bin Mwijab & Another
    Mombasa Civil Appeal No. 83 of 1983
  • Kalsumbai v Abdulhussein
  • Kiburitiri v Kibutiri
    (1983) KLR 62
  • Cyril J Haroo & Another v Uchumi Services & Others
    (2014) eKLR
  • Kilifi PMCC No. 211 of 2009 (proceedings produced in evidence)
Jurisdiction invoked
Order 37 of the Civil Procedure Rules (Originating Summons procedure)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mwalimu Kalume Charo & another v Kifalu Karisa Kitsao [2016] KEELC 692 (KLR)", Case Analysis (2016). Originating Summons dated 22nd August 2011 (Kilifi/Mtondia 116). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/692/eng@2016-07-22

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