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ELCStruck OutNot stated in judgment (Originating Summons dated 7th September, 2017)· [2018] KEELC 1118 (KLR)

Jane Mbiku Muchira v Kenya African National Traders and Farmers Union & 2 others [2018] KEELC 1118 (KLR)

Environment and Land Court
26 October 2018
1,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land buyer's entire case was struck out because he filed it using the wrong court procedure, so choosing the right filing method matters.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O.A. Angote, J) determined a Notice of Preliminary Objection by the 2nd Defendant to an Originating Summons dated 7th September, 2017, in which the Plaintiff sought a declaration that Donyo Sabuk/Komarock Block 1/12258 was his property following a 1995 purchase from the 1st Defendant, delivery of vacant possession and the Title Deed, an injunction against the 2nd Defendant as trespasser, and issuance of a Title Deed by the 3rd Defendant. The 2nd Defendant objected that the suit was statute barred, that the sale was void for want of Land Control Board consent under Section 6 of the Land Control Act, and that the suit should be dismissed. The court framed three preliminary issues: permissibility of commencement by Originating Summons, validity of the sale agreement, and limitation. Applying Order 37 and Order 38 of the Civil Procedure Rules and the authorities of Wepukhulu, Cyril J. Haroo and Kibutiri, the court held that the Plaintiff's claim, being premised on cancellation of titles issued to intermediate transferees and the 2nd Defendant, involved complex and disputed questions of fact and law and was expressly prohibited from being brought by Originating Summons. The court declined to determine the Land Control Act and limitation issues, holding them to be matters for trial. The preliminary objection succeeded on the institution ground only, and the Originating Summons was struck out with costs to the Defendants.

Key legal issues

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01

Whether the suit could properly be commenced by Originating Summons

Holding

It could not; the claim necessitated cancellation of titles and required viva voce evidence, and the Rules prohibit such claims by Originating Summons

Reasoning

The Plaintiff sought cancellation of the title issued to the 2nd Defendant and intermediate titles. Cancellation requires proof of fraud or mistake through detailed evidence and cross-examination. Order 37 Rule 8 (as referenced through prior authority) and Order 38 Rules 3 and 8 prohibit such claims being brought by Originating Summons. The transactions raised complex issues unsuitable for summary determination.

p. 3
02

Whether the sale was null and void for want of Land Control Board consent under Section 6 of the Land Control Act

Holding

Not determined at the preliminary stage; a matter for trial

Reasoning

While Section 6 of the Land Control Act invalidates dealings in agricultural land without Board consent within six months, the court declined to make a finding because the issue could only be conclusively dealt with after trial.

p. 3
03

Whether the suit is statute barred under Section 7 of the Limitation of Actions Act

Holding

Not determined on a preliminary objection; accrual date is a factual question for trial

Reasoning

Although Section 7 bars recovery of land after twelve years, when the right of action accrued depends on when the Plaintiff discovered the transfer to the 2nd Defendant, a factual issue determinable only after trial and not by preliminary objection.

p. 3

Legal principles established

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  • A claim for cancellation of a registered title cannot be entertained by way of Originating Summons under Order 37 Rule 8
  • Where issues raise complex and contentious questions of fact and law, an Originating Summons should be dismissed and parties left to pursue an ordinary suit

Court orders

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  1. 1.The 2nd Defendant's Notice of Preliminary Objection succeeds on the ground that the suit was wrongly instituted by way of an Originating Summons
  2. 2.The Plaintiff's Originating Summons dated 7th September, 2017 is struck out with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 3 Rule 1
  • Civil Procedure Rules, 2010Order 37
  • Civil Procedure Rules, 2010Order 37 Rule 8
  • Civil Procedure Rules, 2010Order 38 Rule 3
  • Civil Procedure Rules, 2010Order 38 Rule 8
  • Land Control ActSection 6
  • Limitation of Actions ActSection 7
  • Registered Land Act (repealed)Section 143

Cases cited (3)

  • Wepukhulu vs. Secretary Board of Governors Buruburu Secondary School
    (2000) 1KLR 473
  • Cyril J. Haroo & Another vs. Uchumi Services Ltd & 3 others
    (2014) eKLR
  • Kibutiri vs. Kibutiri
    (1983) KLR 1
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; suit commenced by Originating Summons under Order 37 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Mbiku Muchira v Kenya African National Traders and Farmers Union & 2 others [2018] KEELC 1118 (KLR)", Case Analysis (2018). Not stated in judgment (Originating Summons dated 7th September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1118/eng@2018-10-26

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