John Wambura & another v Anakletus Wambura [2017] KEELC 2281 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an Originating Summons for adverse possession without an annexed certified extract of title is competent
The omission renders the Originating Summons incompetent and it must be struck out on preliminary objection.
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.
Legal principles established
#- 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
#- 1.The Originating Summons is struck out
- 2.Costs of the preliminary objection to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.