Vitalis Okoth Ngesa & 2 others (suing on their own behalf and as Officials of Kasarani Youth Panorama Association) v Kenya Builders and Concrete Limited & another [2019] KEELC 1 (KLR)
The bottom line
#A Kenyan court refused to protect land occupiers from eviction because they failed to attach a certified copy of the landowner's title to their adverse possession claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case for an interlocutory injunction in an adverse possession claim
The applicants failed to establish a prima facie case with a probability of success because they did not present a certified extract of title in the names of the two respondents, a mandatory requirement under Order 37 rule 7(2).
The originating summons was brought under Section 38 of the Limitation of Actions Act and Order 37 rule 7, which requires a certified extract of title annexed to the supporting affidavit. An adverse possession order would direct the land registrar to expunge the registered proprietor's name and insert the applicants'. Without a certified extract of title naming the two defendants, the court could not find a prima facie case with probability of success. Lack of development approvals and absence of authorisation from the 146 association members further undermined the application.
Legal principles established
#- An originating summons under Section 38 of the Limitation of Actions Act must be supported by an affidavit to which a certified extract of title to the land in question is annexed; without a certified extract of title in the names of the registered proprietors, no order of adverse possession can issue.
Court orders
#- 1.The notice of motion dated 23/10/2017 is dismissed for lack of merit
- 2.The 1st respondent shall have costs of the application, to be borne by the applicants
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act read with Order 37 rule 7(1), (2) and (3) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vitalis Okoth Ngesa & 2 others (suing on their own behalf and as Officials of Kasarani Youth Panorama Association) v Kenya Builders and Concrete Limited & another [2019] KEELC 1 (KLR)", Case Analysis (2019). Nairobi ELC Origination Summons dated 6/10/2017 (with notice of motion dated 23/10/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1/eng@2019-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.