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ELCDismissedNot stated in the extract (Originating Summons with Notice of Motion dated 3rd May 2018)· [2018] KEELC 4886 (KLR)

Wesley Kipyegon Bor & 8 others v Richard Pares (Being sued as the Administrator of the Estate of the late Kipkorir Arap Chebogoiyo) & 3 others [2018] KEELC 4886 (KLR)

Environment and Land Court
30 August 2018
1,944 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The court dismissed a land dispute application because the claimants skipped a mandatory filing requirement and their claimed title no longer existed.

What this practically means

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Executive summary

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The Plaintiffs filed an Originating Summons under sections 7 and 38 of the Limitation of Actions Act, the Land Act, the Land Registration Act and Articles 40 and 64 of the Constitution seeking declaration of adverse possession over varying portions of KERICHO/EAST SOTIK S.S/203. Concurrently they moved the court by Notice of Motion dated 3rd May 2018 seeking interlocutory orders: unblocking of a road, restraint of trespass and interference, staying succession proceedings in Bomet HC Succession Cause 35 of 2015 and criminal proceedings in Bomet PM CC Nos. 609 and 635 of 2018, deposit of titles, and a site visit. The 1st and 2nd Defendants opposed, contending the title was closed following distribution of the deceased's estate under a confirmed grant that had not been revoked, that any sales by administrators violated section 45 of the Law of Succession Act, and that the Plaintiffs failed to annex an abstract of title as required by Order 37 Rule 7(2) of the Civil Procedure Rules and failed to identify the portions claimed. Only the Defendants filed submissions. The court agreed the annexure requirement was mandatory, held it could not issue an injunction on an invalid suit, noted the title number sued on no longer existed and that no prima facie case had been demonstrated, and dismissed the application with costs to the Respondents.

Key legal issues

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01

Compliance with Order 37 Rule 7(2) of the Civil Procedure Rules

Holding

Failure to annex a certified extract/abstract of title renders the suit invalid and disentitles the Plaintiffs to interlocutory relief

Reasoning

The court adopted counsel's submission that the rule is couched in mandatory terms, citing Mogoko Omanwa v Norah K. Nyambara where an OS for adverse possession was dismissed for failure to annex the abstract of title. The court held it could not issue an injunction founded on an invalid suit and dismissed the application.

p. 4
02

Prima facie case for adverse possession and injunction

Holding

The Plaintiffs failed to identify the portions claimed, pleaded a title issuance inconsistent with adverse possession, and relied on a closed title number, so no prima facie case was established

Reasoning

The Defendants demonstrated the suit title had been closed upon distribution of the estate in Bomet HC Succession Cause 35 of 2015, which remained unrevoked. The Plaintiffs' assertion that titles were issued to them contradicted their adverse possession claim, and sales by administrators would offend section 45 of the Law of Succession Act.

p. 4

Legal principles established

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  • An adverse possession claim by Originating Summons must be supported by an affidavit to which a certified extract/abstract of title is annexed, and failure to do so renders the suit invalid

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 3rd May 2018 is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd Defendants/Respondents

Authorities

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Legislation

  • Land ActSection 7
  • Land Registration ActSection 28
  • Limitation of Actions ActSections 7, 37 and 38
  • Civil Procedure RulesOrder 37 Rule 7(2)
  • Constitution of the Republic of KenyaArticles 40 and 64
  • Law of Succession ActSection 45

Cases cited (2)

  • Mogoko Omanwa versus Norah K. Nyambati
    Kisii HCC No. 93 of 2007
  • Lawrence Mururi Njagana versus Charles Mwenga Mulwa
    Muranga ELC No. 45 of 2017
Jurisdiction invoked
Sections 7 of the Land Act 2012, Section 28 of the Land Registration Act 2012, Sections 7, 37 and 38 of the Limitation of Actions Act, Order 37 Rule 7 of the Civil Procedure Rules and Articles 40 and 64 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, "Wesley Kipyegon Bor & 8 others v Richard Pares (Being sued as the Administrator of the Estate of the late Kipkorir Arap Chebogoiyo) & 3 others [2018] KEELC 4886 (KLR)", Case Analysis (2018). Not stated in the extract (Originating Summons with Notice of Motion dated 3rd May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4886/eng@2018-08-30

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