Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedOriginating Summons dated 9th March 2017 (Nakuru)· [2018] KEELC 3676 (KLR)

Josiah Njoroge Njuguna v Ingobor Farm Co. (Registered Trustees) & 3 others [2018] KEELC 3676 (KLR)

Environment and Land Court
6 March 2018
DOD. O. Ohungo
2,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that adverse possession claims must include a certified title extract, but missing paperwork can be fixed within 14 days before dismissal.

What this practically means

#

Executive summary

#
The plaintiff brought an Originating Summons dated 9th March 2017 seeking a declaration that he had acquired Miti Mingi/Mbaruk Block 4/37 and Miti Mingi/Mbaruki Block 4/38 by adverse possession, having allegedly entered in 1997 when the original title deeds were handed to him by the 1st defendant, and having become registered proprietor of Block 4/37 in 1997. Late in 2016 he learnt that the 3rd defendant had obtained title, and a search revealed the 2nd and 3rd defendants were registered on 14th November 2012. The 2nd and 3rd defendants filed a Notice of Preliminary Objection contending that the suit violated section 38 of the Limitation of Actions Act and Order 37 rule 7(2) of the Civil Procedure Rules because a certified extract of title was not annexed, and that a plaintiff who annexes a title in his own name cannot claim adverse possession against himself. The court held that annexing a certified extract of title is mandatory and that a photocopy of a title deed is not equivalent, finding the Originating Summons in breach of Order 37 rule 7. However, since the rule prescribes no consequence for non-compliance, the court exercised its discretion under Article 159 in favour of substantive justice, no prejudice having been demonstrated, and gave the plaintiff 14 days to file a supplementary affidavit annexing a certified extract of title, failing which the summons would stand struck out with costs to the 2nd and 3rd defendants. The court further held that whether the plaintiff, being a registered proprietor, can claim adverse possession is a factual question for the hearing and not a valid ground of preliminary objection. Costs of the objection were awarded to the 2nd and 3rd defendants.

Key legal issues

#
01

Mandatory nature of the certified extract of title requirement

Holding

The Originating Summons was in breach of the mandatory provisions of Order 37 rule 7(2) because only photocopies of title deeds, and not a certified extract of title, were annexed

Reasoning

The court distinguished a certified extract of title from a mere photocopy of a title deed: ownership may change on the register, and only a certified extract, with the registrar's signature and date, shows the latest status of the register and carries an extra layer of credibility. Precision in identifying the land and its registered proprietor is acutely important in adverse possession proceedings.

p. 3
02

Consequences of non-compliance with Order 37 rule 7(2)

Holding

Striking out is not automatic; the court retains discretion, informed by Article 159 and the overriding objective, and in the absence of demonstrated prejudice the plaintiff should be given an opportunity to comply

Reasoning

The rule is silent on consequences, so the discretion must be exercised judiciously. Relying on the Supreme Court's caution in Zacharia Okoth Obado v Edward Akong'o Oyugi that Article 159(2)(d) is not a panacea for all procedural shortfalls but applies case by case, the court held that substantial justice in the new dispensation required giving the plaintiff leave to cure the defect, with striking out only upon default.

p. 4
03

Whether registration of the plaintiff as proprietor defeats an adverse possession claim at the preliminary stage

Holding

That question goes to the merit of the dispute and depends on evidence; it cannot be raised by way of preliminary objection

Reasoning

A preliminary objection must consist of a point of law which, if argued, may dispose of the suit. The tenability of an adverse possession claim by a registered proprietor depends on the evidence and on the certified extract of title once availed, and is therefore a matter for the hearing of the originating summons rather than a preliminary objection.

p. 5

Legal principles established

#
  • The requirement in Order 37 rule 7(2) that an originating summons for adverse possession be supported by an affidavit annexing a certified extract of title is mandatory
  • A certified extract of title is not the same thing as a copy of the title deed
  • Since Order 37 rule 7 does not prescribe consequences for non-compliance, the court has a discretion to be exercised judiciously in favour of substantive justice under Article 159
  • Whether the plaintiff claiming adverse possession is himself the registered proprietor is a question of fact for the hearing, not a valid ground of a preliminary objection

Court orders

#
  1. 1.The plaintiff to file and serve a supplementary affidavit and annex to it a certified extract of title in respect of the suit properties within 14 (fourteen) days from the date of delivery of the ruling
  2. 2.In default, the originating summons shall stand struck out with costs to the 2nd and 3rd defendants
  3. 3.Costs of the preliminary objection awarded to the 2nd and 3rd defendants

Authorities

#

Legislation

  • Limitation of Actions ActSection 38(1) and (4)
  • Civil Procedure Rules, 2010Order 37 rules 7, 16 and 18
  • Civil Procedure ActSection 1A
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Wasui –vs- Musumba
    (2002) 1 KLR 396
  • Samuel Kipngeno Koech –vs- Agnes Wambui Gitonga
    [2016] eKLR
  • Serah Muthoni Kimani –vs- John Wanyoike Gerald
    [2014] eKLR
  • Richard Arap Chemunyani & 3 others –vs- Mpasi Ole Ngogoni
    Nakuru HCCC No. 160 of 2005 (Unreported)
  • Zacharia Okoth Obado v Edward Akong'o Oyugi & 2 others
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
  • Raila Odinga and 5 Others v. IEBC and 3 Others; Petition No. 5 of 2013
    [2013] eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22) and Order 37 of the Civil Procedure Rules, 2010; Article 159 of the Constitution invoked on substantive justice

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Josiah Njoroge Njuguna v Ingobor Farm Co. (Registered Trustees) & 3 others [2018] KEELC 3676 (KLR)", Case Analysis (2018). Originating Summons dated 9th March 2017 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3676/eng@2018-03-06

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