Michael Mwanzia Kitavi v Lukenya Universit Trust Registered Trustees & 3 others [2017] KEELC 273 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether settlement scheme land is immune from adverse possession
Yes; the suit land is public land under Article 62(1)(a) and is excluded from adverse possession claims under section 41 of the Limitation of Actions Act.
The undisputed facts showed the suit land lies within the Ngai Ndethya settlement scheme, held historically by the Settlement Fund Trustees and now under the Land Settlement Fund Board of Trustees under sections 134 and 135 of the Land Act. The court agreed with the defendants that such land falls under public land as provided for under Article 62(1)(a) of the Constitution, and that section 41(a)(i) of the Limitation of Actions Act disables a person from acquiring title by adverse possession over Government land. The plaintiff also failed to plead or exhibit a title under the statutes cited in section 37, as required by section 38(1).
Whether commencing the adverse possession claim by plaint rather than Originating Summons is fatal
Yes; the departure from Order 37 Rule 7 is fundamental and cannot be cured by Article 159(2)(d) or the overriding objective.
Order 37 Rule 7 requires an application for adverse possession to be brought by Originating Summons supported by an affidavit with a certified extract of title annexed. The plaintiff instead filed a plaint and produced no certified extract of title. The court held the non-compliance amounted to fundamental, substantial and fatal departures which Article 159(2)(d) of the Constitution and sections 1A and 3A of the Civil Procedure Act cannot cure, rendering the suit fatally defective ab initio.
Whether failure to give statutory notice under the Government Proceedings Act renders the suit incompetent
Yes; the plaintiff was required to give 30 days' notice to the 2nd and 3rd defendants before filing suit, and no injunction can issue against the Government.
Since the Government had been sued over a government land settlement scheme, sections 13A and 16 of the Government Proceedings Act applied. The court associated itself with the holdings in Miriam Njeru Njau v Attorney General and Joseph Nyamamba v Kenya Railways Corporation that failure to give the mandatory statutory notice renders a suit incompetent and liable to be struck out, and that section 16 bars injunctive orders against the Government. The plaintiff's access-to-justice argument under Article 48 did not persuade the court.
Legal principles established
#- A claim for adverse possession under section 38 of the Limitation of Actions Act must be commenced by way of Originating Summons supported by an affidavit with a certified extract of the title annexed, and non-compliance is a fatal defect not curable under Article 159.
- Land within a settlement scheme is public land under Article 62(1)(a) of the Constitution and is not amenable to adverse possession by virtue of section 41 of the Limitation of Actions Act.
- An injunction cannot issue against the Government under section 16 of the Government Proceedings Act.
Court orders
#- 1.The entire suit struck out as fatally defective
- 2.Costs to the 1st, 2nd and 3rd defendants
- Jurisdiction invoked
- Original jurisdiction of the High Court/Environment and Land Court over land; claim for adverse possession under Section 38(1) of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Mwanzia Kitavi v Lukenya Universit Trust Registered Trustees & 3 others [2017] KEELC 273 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/273/eng@2017-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.