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ELCDismissedNot stated in the judgment text· [2018] KEELC 2940 (KLR)

Salim Bakari Mwinyi & others v Mohamed Ali Moses alias Gandi & others [2018] KEELC 2940 (KLR)

Environment and Land Court
22 June 2018
AOA. Omollo
1,157 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by A. Omollo J of the Environment and Land Court at Mombasa dealt with four applications in an adverse possession suit: the plaintiffs' application dated 1st August 2017, a preliminary objection dated 15th November 2017, and striking-out applications by the 3rd, 5th and 6th defendants under Order 2 rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. Counsel for the plaintiffs conceded that fencing of the suit land was complete, rendering the plaintiffs' application moot, and the court marked it abandoned with costs to the responding defendants in the cause. The defendants sought to strike out the entire suit on grounds that it disclosed no reasonable cause of action, was frivolous and vexatious, that each defendant held separate titles, that the plaintiffs were not in occupation, and that failure to plead adverse possession made the suit incompetent. The court held that occupation is a question of fact to be established by evidence at trial; that relying on a defendant's annextures without hearing the plaintiffs would violate natural justice and the right to a fair hearing; that disputed advocate appointment did not invalidate the suit as originally commenced; and that separate adjacent titles did not preclude the joint suit absent demonstrated inconvenience. All three defendants' applications were dismissed as premature, meritless and intended to delay trial, with costs to the plaintiffs in the cause.

Key legal issues

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01

Whether an adverse possession claim can be struck out before trial on the basis that plaintiffs are not in occupation

Holding

The application was premature because occupation is a factual question requiring evidence and the matter has not been heard on merits

Reasoning

The court held that the validity of the 5th defendant's title was not in issue; the real question was the plaintiffs' physical occupation and its duration. That is a matter of fact provable only by evidence at trial. Since parties had not taken directions on how the matter would proceed, deciding occupation on annextures would deny the plaintiffs a fair hearing and constitute an abuse of process.

p. 2
02

Whether defects in the appointment of the plaintiffs' advocates or the swearing of the supporting affidavit invalidate the suit

Holding

Such defects do not invalidate a suit as originally commenced

Reasoning

The originating summons and supporting affidavit of 10th June 2014 were drawn by Salim Bakari Mwinyi. The court held that whether Ms Joseph Gathuku & Co advocates were properly appointed did not invalidate the suit as originally commenced, so that ground of objection collapsed.

p. 2
03

Whether the defendants' possession of separate titles precludes a joint claim against all defendants

Holding

Separate adjacent titles do not defeat a joint suit; the plaintiffs must establish their claim against each defendant and no inconvenience was demonstrated

Reasoning

The court found no denial that the defendants' properties are adjacent and that they were initially one 'big land' alleged to be ancestral. It is for the plaintiffs to establish a claim against each defendant, and the defendants did not demonstrate any inconvenience from being sued together.

p. 2

Legal principles established

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  • Whether parties were in physical occupation of land claimed under adverse possession is a question of fact that must be established by evidence at trial and cannot be resolved on a striking-out application
  • A court cannot decide a striking-out application by relying on a party's annextures without giving the other side an opportunity to present its case, as that would offend the right to a fair hearing

Court orders

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  1. 1.The plaintiffs' application dated 1st August 2017 marked as abandoned
  2. 2.Costs of the plaintiffs' abandoned motion awarded to the defendants who had filed responses and submissions, costs in the cause
  3. 3.The defendants' applications dated 19.10.2017, 10.11.2017 and 1.12.2017 dismissed with costs to the plaintiffs, ordered in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15
  • Civil Procedure ActSection 3A

Cases cited (4)

  • Joseph Mureithi vs Mathenge Njeru
    (2016) eKLR
  • Perej General Trading Ltd & Another vs Mumias Sugar Co Ltd
    (2016) eKLR
  • GBM Kariuki vs Nation Media Group & 3 Others
    (2012) eKLR
  • Wilson Kazngu Kalama & 110 others vs Salim Bakshwein & Another
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Act (Order 2 rule 15 and Section 3A) in an adverse possession suit

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, "Salim Bakari Mwinyi & others v Mohamed Ali Moses alias Gandi & others [2018] KEELC 2940 (KLR)", Case Analysis (2018). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2940/eng@2018-06-22

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