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)
The bottom line
#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
#Executive summary
#Key legal issues
#Compliance with Order 37 Rule 7(2) of the Civil Procedure Rules
Failure to annex a certified extract/abstract of title renders the suit invalid and disentitles the Plaintiffs to interlocutory relief
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.
Prima facie case for adverse possession and injunction
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
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.
Legal principles established
#- 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
#- 1.The Plaintiffs' Notice of Motion dated 3rd May 2018 is dismissed
- 2.Costs of the application awarded to the 1st and 2nd Defendants/Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.