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ELCStruck OutOriginating Summons dated 12th August 2016 (Migori Environment and Land Court)· [2018] KEELC 2046 (KLR)

Nicholas Oracha Omeny & another v Richard Olunga Migan & another [2018] KEELC 2046 (KLR)

Environment and Land Court of Kenya
18 July 2018
1,551 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Migori (G.M.A. Ongondo J, delivered 18 July 2018) determines a preliminary objection dated 14 July 2017 by the defendants seeking to strike out the plaintiffs' originating summons dated 12 August 2016. The plaintiffs claimed to have purchased 2.5 acres and 1.0 acre respectively of land parcel Kanyada/Kanyango-Kalanya/1213 from the late Peter Wanjare Migan, who put them in possession but died before transferring the portions. Following succession proceedings in which the defendants were registered as administrators and proprietors, the plaintiffs sued claiming, inter alia, title by adverse possession under Section 38(1) of the Limitation of Actions Act. The defendants objected that the originating summons was incurably defective for failure to annex an abstract of title as mandatorily required by Order 37 Rule 7(2) of the Civil Procedure Rules, 2010. The court framed two issues: the defectiveness of the summons and costs. Examining the supporting affidavits, the court found only sale agreements and photographs annexed, with no certified extract of title. Relying on Kweyu v Omuto, Ismael Busolo Watuko and John Wambura, the court held the requirement mandatory and the omission incurable under Article 159(2)(d), Section 1A of the Civil Procedure Act and Section 19(1) of the Environment and Land Court Act. The preliminary objection was upheld and the originating summons struck out with costs to the defendants.

Key legal issues

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01

Whether failure to annex a certified extract of title to the supporting affidavit renders an adverse possession originating summons incurably defective.

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The defendant's preliminary objection dated 14th July 2017 is upheld.
  2. 2.The originating summons is struck out with costs to the defendants.

Authorities

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Legislation

  • Civil Procedure Code / Civil Procedure Rules, 2010Order 37 Rule 7(1)-(3); Order 19 Rule 7
  • Civil Procedure ActSection 1A
  • Environment and Land Court ActSection 19(1)
  • Limitation of Actions ActSection 38(1)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (6)

  • Mukhisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Ltd
    (1969) EA 696
  • Kweyu –vs- Omuto
    (1990) KLR 709
  • Symon Gatutu & 587 Others –v- EA Portland Cement
    (2011) eKLR
  • Douglas Mwangi Muteru –v- Victoria Mere Dzilla
    (2017) eKLR
  • John Wambura & Anor –v- Anakletus Wambura
    (2017) eKLR
  • Ismael Busolo Watuko –v- Joseph Busolo & 3 Others
    (2013) eKLR
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

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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, "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.