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ELCDismissedNairobi ELC Origination Summons dated 6/10/2017 (with notice of motion dated 23/10/2017)· [2019] KEELC 1 (KLR)

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)

Environment and Land Court
25 February 2019
1,865 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicants, suing on their own behalf and on behalf of Kasarani Youth Panaroma Association, filed an originating summons dated 6/10/2017 under Section 38 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules, claiming they had acquired title to LR Number 7086 (Originally 6825/1), Mihango, Embakasi, by adverse possession against the registered owner, Kenya Builders and Concrete Limited, and Naman Ndongi Mukabana. They sought registration as proprietors, transfer of title, and a permanent injunction. By a notice of motion dated 23/10/2017, they sought interim orders restraining the respondents from evicting them, demolishing their structures, or interfering with their occupation pending determination of the suit. The 1st respondent opposed, stating it purchased the property in 2010, that the property encroached upon was demarcated and sold by Mr Mukabana from 2013 (prompting Nairobi ELC 1001/2013), and that the applicants claimed allocation of a neighbouring property, LR 6826/3, by the defunct Nairobi City Council. The 2nd respondent entered appearance but filed no response. Applying the Giella v Cassman Brown criteria, the court (B M Eboso J) held that the applicants failed to demonstrate a prima facie case: they did not annex a certified extract of title in the names of the two respondents, a mandatory requirement under Order 37 rule 7(2); they exhibited no approved development plans; and the list of 146 association members bore no signatures evidencing authority to sue. The motion was dismissed with costs to the 1st respondent, borne by the applicants.

Key legal issues

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01

Whether the applicants established a prima facie case for an interlocutory injunction in an adverse possession claim

Holding

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).

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 23/10/2017 is dismissed for lack of merit
  2. 2.The 1st respondent shall have costs of the application, to be borne by the applicants

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 37 rule 7(1), (2) and (3)

Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
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

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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, "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.