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ELCDismissedMakueni Environment and Land Court (Origination Summons dated 6th October, 2017; Notice of Motion dated 10th April, 2019)· [2019] KEELC 1342 (KLR)

Jeremiah Wambua v Pius Mbengei Musyoki [2019] KEELC 1342 (KLR)

Environment and Land Court
14 October 2019
MGMBOGO C. G.
1,645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Makueni Environment and Land Court dismissed a bid to convert an adverse possession case into a fresh plaint, ruling the applicant gave no sufficient reasons or new evidence.

What this practically means

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Executive summary

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The Applicant, Jeremiah Wambua, moved the Environment and Land Court at Makueni by Notice of Motion dated 10th April, 2019 seeking review of orders made on 25th February, 2019, an order that the proceedings be deemed to have begun by filing a plaint, and liberty for the Defendant to file a defence or counterclaim. The application was anchored on Order 37 Rule 19 of the Civil Procedure Rules, 2010, counsel urging that the court had power to convert originating summons proceedings into a plaint so that the Applicant could raise issues of fraud and constructive trust not sustainable within the summons. The Respondent opposed, arguing that the Applicant was not in adverse possession, that 12 years had not run since his title of 5th November, 2010, and that a fraud claim was entirely different from the adverse possession and trust claim pleaded. The originating summons sought declarations of adverse possession since 1958, that the Respondent hold parcel Mbooni/Kalawani/827 in trust, and that the land be registered in the Applicant's name. The court held that although the power under Order 37 Rule 19 existed, insufficient reasons were advanced: no fraud was pleaded in the supporting affidavit, and no proof that the Applicant sued for the estate of Wambua Musyoki, particularly given the referenced succession cause. No new matter or evidence justified review under Order 45 Rule 1. The application was dismissed with costs to the Respondent, the court observing the Applicant should withdraw the originating summons and file a fresh claim.

Key legal issues

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01

Whether the originating summons proceedings could be committed to continue as if begun by plaint

Holding

The power exists but was refused for lack of sufficient justification; the claim for fraud was not pleaded and no estate capacity was shown.

Reasoning

Order 37 Rule 19 permits conversion where proceedings should for any reason continue as if begun by plaint. The Applicant sought to introduce a fraud claim and a trust claim not raised in the originating summons or supporting affidavit, and did not show he sued for the estate of Wambua Musyoki. Conversion would not cure the substantive defects in the claim.

p. 2
02

Whether the orders of 25/02/2019 warranted review under Order 45

Holding

No, as no new and important matter or evidence was discovered after due diligence.

Reasoning

Review requires either discovery of new and important matter or evidence, or other sufficient reason. The Applicant conceded his suit stood no chance of success; his complaint about costs of withdrawal was not a ground for review. The court found the application a waste of judicial time.

p. 2

Legal principles established

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  • A court has power under Order 37 Rule 19 to convert originating summons proceedings into a plaint, but the applicant must show sufficient reasons to warrant the conversion.
  • Review under Order 45 Rule 1 requires discovery of a new and important matter or evidence not available despite due diligence.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 10th April, 2019 was dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 19(1)
  • Civil Procedure Rules, 2010Order 45 Rule 1(1)(a) and (b)
Jurisdiction invoked
Inherent powers of the Environment and Land Court together with Order 37 Rule 19 and Order 45 Rule 1(1)(a) and (b) of the Civil Procedure Rules, 2010

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, "Jeremiah Wambua v Pius Mbengei Musyoki [2019] KEELC 1342 (KLR)", Case Analysis (2019). Makueni Environment and Land Court (Origination Summons dated 6th October, 2017; Notice of Motion dated 10th April, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1342/eng@2019-10-14

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