Nicholas Oracha Omeny & another v Richard Olunga Migan & another [2018] KEELC 2046 (KLR)
The bottom line
#A Kenyan court struck out an adverse possession claim because the plaintiffs failed to attach a certified copy of the land title to their court documents.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to annex a certified extract of title to the supporting affidavit renders an adverse possession originating summons incurably defective.
Yes — the requirement is mandatory and the omission cannot be cured under the overriding objective or Article 159(2)(d) of the Constitution; the originating summons is incompetent and is struck out.
Section 38(1) of the Limitation of Actions Act confers the right to apply for registration as proprietor by adverse possession, and Order 37 Rule 7(2) prescribes the procedure. The plaintiffs' supporting affidavits annexed only sale agreements and photographs, no certified extract of title. The Court of Appeal has restated that the requirement is mandatory (Kweyu v Omuto), and the court endorsed Watuko and Wambura, holding the omission inexcusable where no effort was made to comply with the law.
Legal principles established
#- Order 37 Rule 7(2) of the Civil Procedure Rules, 2010 mandatorily requires a certified extract of title to the land to be annexed to the affidavit supporting an originating summons for adverse possession; failure renders the summons incompetent and is not curable under Article 159(2)(d).
Court orders
#- 1.The defendant's preliminary objection dated 14th July 2017 is upheld.
- 2.The originating summons is struck out with costs to the defendants.
- Jurisdiction invoked
- Original jurisdiction under Section 38(1) of the Limitation of Actions Act (Cap 22) and Section 19 of the Environment and Land Court Act; civil procedure governed by the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Oracha Omeny & another v Richard Olunga Migan & another [2018] KEELC 2046 (KLR)", Case Analysis (2018). Originating Summons dated 12th August 2016 (Migori Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2046/eng@2018-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.