John Maina Gatundu v Francis Mwangi Waititu [2017] KEELC 3488 (KLR)
The bottom line
#A Kenyan court struck out an adverse possession land claim because the owner failed to attach a certified copy of the title deed, ruling this is mandatory, not a technicality.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim for adverse possession is properly before the court notwithstanding prior tribunal and subordinate court proceedings
The res sub judice objection fails because no other case considering the adverse possession claim was pending when the suit was filed
The respondent argued that prior Land Dispute Tribunal orders and pending judicial review proceedings offended Section 6 of the Civil Procedure Act. The court found no evidence of any case in which the applicant's claim to the suit property by adverse possession was under consideration when the suit was filed, and held the contention unsubstantiated.
Whether the adverse possession claim satisfies the requirements of Order 37 Rule 7 of the Civil Procedure Rules
The suit is fatally defective for failure to annex a certified extract of the title
Time for adverse possession runs from the date the respondent became registered proprietor. Without a certified extract of title, the court could not determine when registration was effected and when the 12-year period began to run. Though the averment of 12 years' occupation was not expressly controverted, the applicant bore the burden of proof and did not discharge it.
Legal principles established
#- The burden in an adverse possession claim is on the claimant to prove exclusive, open and uninterrupted possession for 12 years after dispossessing the owner or on the owner's discontinuance of possession
- Annexing a certified extract of the title is a mandatory requirement in an adverse possession claim under Order 37 Rule 7 of the Civil Procedure Rules
Court orders
#- 1.The originating summons/application is struck out
- 2.Costs to the respondent
- Jurisdiction invoked
- Order 37 Rule 7 of the Civil Procedure Rules read with Section 38 of the Limitation of Actions Act (claim for adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Maina Gatundu v Francis Mwangi Waititu [2017] KEELC 3488 (KLR)", Case Analysis (2017). Nyandarua/Ndaragwa/Uruku Block 2/564 Originating Summons dated 28th September 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3488/eng@2017-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.