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ELCStruck OutELC Originating Summons (Busia) - parcel BUNYALA/BULEMIA/2692· [2017] KEELC 2281 (KLR)

John Wambura & another v Anakletus Wambura [2017] KEELC 2281 (KLR)

Environment and Land Court
19 July 2017
604 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court struck out an adverse possession land claim because the family suing forgot one mandatory document: a certified extract of the title.

What this practically means

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Executive summary

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The two Applicants, John Wambura and Geoffrey Wambura, filed an Originating Summons on 26/5/2015 claiming three acres of land parcel BUNYALA/BULEMIA/2692 by adverse possession against the registered owner, Anakletus Wambura, alleging over 35 years of occupation. The Respondent filed a notice of preliminary objection on 5/7/2017 (dated 4/7/2017) contending that the Originating Summons was fatally defective because the supporting affidavit did not annex a certified extract of title, contrary to Order 37 Rule 7(2) of the Civil Procedure Rules, 2010, which mandates such annexure. The Applicants, though served (including by service effected on 5/11/2016 by Peter Nanjala Odwori and directions given on 19/9/2016 for the hearing of 21/11/2016), never appeared in court and did not respond to the objection. The Respondent filed submissions on 18/1/2017, citing the Kericho ELC ruling in ELC No. 05 of 2015 (O.S.) where Silas J struck out a similar Originating Summons for the same omission. Kaniaru J held that the requirement to annex a certified extract of title is mandatory and that failure to annex it renders the Originating Summons incompetent. Agreeing generally with the Kericho ruling and with the Respondent, the court allowed the preliminary objection, struck out the Originating Summons with costs to the Respondent. Judgment was delivered at Busia on 19 July 2017.

Key legal issues

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Whether an Originating Summons for adverse possession without an annexed certified extract of title is competent

Holding

The omission renders the Originating Summons incompetent and it must be struck out on preliminary objection.

Reasoning

Order 37 Rule 7(2) of the Civil Procedure Rules, 2010 mandatorily requires that the supporting affidavit to an adverse possession Originating Summons have annexed a certified extract of title. The Applicants' O.S. did not annex one. The court aligned itself with the Kericho ruling by Silas J in ELC No. 05 of 2015 (O.S.), which struck out a similar O.S. for the same omission, and upheld the preliminary objection with costs.

p. 2

Legal principles established

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  • The requirement under Order 37 Rule 7(2) to annex a certified extract of title to the supporting affidavit of an adverse possession Originating Summons is mandatory, and failure to annex it renders the summons incompetent.

Court orders

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  1. 1.The Originating Summons is struck out
  2. 2.Costs of the preliminary objection to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 7(2)
  • Limitation of Actions ActSection 38
Jurisdiction invoked
Section 38 of the Limitation of Actions Act via Order 37 Rule 7 of the Civil Procedure Rules, 2010 (adverse possession claim by Originating Summons)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Wambura & another v Anakletus Wambura [2017] KEELC 2281 (KLR)", Case Analysis (2017). ELC Originating Summons (Busia) - parcel BUNYALA/BULEMIA/2692. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2281/eng@2017-07-19

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