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ELCPartially AllowedNyeri ELC No. 120 of 2016 (O.S) - counter-claim expressed as a fresh suit· [2018] KEELC 2675 (KLR)

Nancy Njeri Ndichu v Charles Mathenge Gitonga [2018] KEELC 2675 (KLR)

Environment and Land Court
3 July 2018
LWL N Waithaka
1,723 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 down a landowner's adverse possession counter-claim filed in the wrong format, but gave him 15 days to fix it and try again.

What this practically means

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Executive summary

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By a plaint dated 13th June 2016, the plaintiff sued the defendant for eviction and an injunction over parcel Euwaso Nyiro/Suguroi Block VIII/461, alleging trespass and developments on a portion of the suit property. The defendant filed a statement of defence and counter-claim dated 29th June 2016, contending he had acquired the portion he occupies by adverse possession and that he bought it from Peter Miaraho Muriuki. The counter-claim was expressed as a fresh suit, Nyeri ELC No.120 of 2016 (O.S), requiring the plaintiff to enter appearance to an originating summons. The plaintiff raised a preliminary objection arguing that the counter-claim offended Order 37 of the Civil Procedure Rules, 2010, particularly Rule 15, relying on Jackson Inziani Khayumbi v. Patrick Amakobe and Cyril J. Haroo v. Uchumi Services Limited. The defendant opposed, relying on Gulam Miriam Noordin v. Julius Charo Karisa and Teresiah Wachika v. Joseph Mwangi, submitting that no prescribed form exists for an adverse possession counter-claim and that the objection was a technical barrier contrary to Article 159(2)(d). The court held that because the counter-claim required the plaintiff to enter appearance to summons, it amounted to a suit within a suit governed by Order 37 procedure, and was fatally defective in form; the authorities cited by the defendant did not support the procedure adopted. The court struck out the counter-claim, granted the defendant 15 days' leave to amend his defence and raise a proper counter-claim, and granted the plaintiff corresponding leave to reply, and awarded the plaintiff the costs of the objection.

Key legal issues

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01

Whether an adverse possession counter-claim may be filed as an originating summons within an existing suit

Holding

No - the counter-claim in the form of an originating summons constituting a suit within a suit is fatally defective and was struck out, though leave to amend was granted

Reasoning

The court distinguished the authorities relied on by the defendant, holding that Gulam Miriam Noordin merely shows that adverse possession may be raised by defence or defence and counter-claim, not by an O.S embedded in an existing suit. Because the counter-claim required the plaintiff to enter appearance to summons for determination of issues, it constituted a suit within a suit governed by Order 37 procedure rather than the normal procedure for hearing suits, and was therefore defective in form.

p. 2

Legal principles established

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  • A counter-claim expressed as a fresh suit by originating summons requiring the plaintiff to enter appearance is fatally defective in form and may be struck out

Court orders

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  1. 1.The defendant's counter-claim struck out from the court record
  2. 2.Leave granted to the defendant to amend his defence and raise a proper counter-claim, if need be, within 15 days of delivery of the ruling
  3. 3.Leave granted to the plaintiff, within 15 days of service of the amended defence and counter-claim, to file and serve an amended reply to defence and counter-claim, if need be
  4. 4.Costs of the preliminary objection awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 (including Rules 7 and 15)
  • Limitation of Actions ActSection 38
  • Civil Procedure ActSections 1A, 1B, 3A, 100
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Environment and Land ActSection 19(1)

Cases cited (6)

  • Jackson Inziani Khayumbi v. Patrick Amakobe
    (2016) eKLR
  • Cyril J. Haroo & Another v. Uchumi Services Limited & 3 Others
    (2014) eKLR
  • Siasa Pasua & 2 Others vs Mbaruk Khamis Mohamed & Another
    (2012) eKLR
  • Gulam Miriam Noordin vs. Julius Charo Karisa
    (2015) eKLR
  • Teresiah Wachika vs Joseph Mwangi
    CA 325/2003
  • Musiane Tinina v. James Ondeng & Another
    (2017) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A, 100 of the Civil Procedure Act and Article 159(2)(d) of the Constitution

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, "Nancy Njeri Ndichu v Charles Mathenge Gitonga [2018] KEELC 2675 (KLR)", Case Analysis (2018). Nyeri ELC No. 120 of 2016 (O.S) - counter-claim expressed as a fresh suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2675/eng@2018-07-03

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