Joseph Dennis Odondo v Meshack Juma Omollo & another [2019] KEELC 889 (KLR)

The court traced the mandatory language of Order 37 Rule 7(2), which requires a certified extract of title to be annexed to the supporting affidavit. It noted the land was registered under the repealed Registered Land Act and that the amended originating summons itself omitted the defendant's name as proprietor. Because proprietorship is constitutionally protected under Article 40, the omission was fundamental, not a mere formal irregularity, and Article 159(2)(d) could not salvage the summons.

The court invoked the settled Mukisa Biscuits principle, as applied in Gitau v Thuo, that a preliminary objection is decided on pure law. It also noted that such an objection should be disposed of first whenever raised. On that footing the objection based on the mandatory annexure requirement in Order 37 Rule 7(2) was properly before the court at that stage, notwithstanding that the plaintiff's case had already closed.

Relying on Tayebali Adamji Alibhai v Abdulhussein Adamji Alibhai as applied by Kneller J in Kimani Ruchine v Swift Rutherford, the court acknowledged the settled exceptions to the conclusiveness of title. This acknowledgment, however, did not save the plaintiff's suit, since the summons itself was procedurally incurably defective for want of the mandated extract of title.