Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutMigori ELCC (O.S.) based on Originating Summons dated 29th November 2017· [2019] KEELC 1938 (KLR)

Rose Akeyo Onyuka v Martin Omondi Ogweno [2019] KEELC 1938 (KLR)

Environment and Land Court
25 June 2019
GOG.M.A. Ongondo
1,116 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Migori court struck out a widow's land ownership claim because she attached a title search instead of the actual certificate of title.

What this practically means

#

Executive summary

#
This is a ruling by G.M.A. Ongondo J of the Environment and Land Court at Migori on a preliminary objection dated 23rd January 2018 by the defendant in an adverse possession suit. The plaintiff, widow of Onyuka Ogalo (Deceased 2), sought by originating summons dated 29th November 2017 to be registered as proprietor of LR No. West Karachuonyo/Kokoth 'A'/88, registered in the name of George Ogweno (Deceased 1) since 1976. The defendant raised two grounds: that he had no locus standi to be sued on behalf of the deceased registered proprietor, and that the originating summons was incurably defective for failure to annex a certificate of title as mandatorily required by Order 37 Rule 7(2) of the Civil Procedure Rules, 2010. The court found that the plaintiff had adduced no document showing she was the legal representative of her late husband's estate, nor that the defendant was the legal representative of the registered owner's estate, so both parties lacked locus standi. The court further found that the plaintiff had annexed only a certificate of official search, not a certificate of title, contrary to the mandatory provision, relying on the definitions in the Land Registration Act. The originating summons was struck out with costs to the defendant. The plaintiff filed no submissions.

Key legal issues

#
01

Locus standi of the parties to the adverse possession suit

Holding

Both the plaintiff and the defendant lacked locus standi: the plaintiff showed no legal representation of the estate of her deceased husband (Deceased 2), and the defendant was not shown to be the legal representative of the estate of the registered proprietor (Deceased 1)

Reasoning

The certificate of official search showed George Ogweno (Deceased 1) was registered proprietor since 1976. The plaintiff did not adduce any document showing she was the legal representative of the estate of her deceased husband, Onyuka Ogalo (Deceased 2), nor that the defendant was the legal representative of Deceased 1's estate. Applying the definition of 'legal representative' under Section 2 of the Civil Procedure Act and Sections 79 and 82 of the Law of Succession Act, both parties could not sue or be sued respectively.

p. 2
02

Compliance with Order 37 Rule 7(2) of the Civil Procedure Rules, 2010

Holding

The originating summons was defective because a certified extract of the title was not annexed to the supporting affidavit; the certificate of official search annexed did not satisfy the mandatory requirement

Reasoning

Order 37 Rule 7(2) mandatorily requires that an adverse possession summons be supported by an affidavit to which a certificate of title is annexed. The plaintiff annexed only a certificate of official search dated 29th August 2017 (RAO-2). Applying the definitions of 'certificate of title' and 'proprietor' under the Land Registration Act, the search document did not amount to a certificate of title and was not certified, so the summons was incompetent.

p. 2

Legal principles established

#
  • An originating summons for adverse possession must be supported by an affidavit to which a certificate of title to the land in question is annexed; an official search certificate does not satisfy this mandatory requirement
  • A claimant in adverse possession proceedings must establish locus standi, including legal representation of the relevant estates where the registered owner and the person in possession are deceased

Court orders

#
  1. 1.The plaintiff's originating summons dated 29th November 2017 is struck out
  2. 2.Costs of the suit awarded to the defendant

Authorities

#

Legislation

  • Civil Procedure ActSection 2
  • Civil Procedure Rules, 2010Order 37 Rule 7(2)
  • Law of Succession ActSections 79, 82
  • Land Registration ActSection 2

Cases cited (4)

  • Susan Wanchara Acheri –v- Maurice Adek Oduogi
    Migori ELCC No. 304 of 2017 (formerly Kisii ELC Case No. 67 of 2014 (O.S.))
  • John Wambura and another –v- Anakletus Wambura
    (2017) eKLR
  • Trouistick Union International and another –vs- Jane Mbeyu and another
    (1993) eKLR
  • Republic –v- Attorney General and another ex-parte John Mugo
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (adverse possession suit under Order 37 of the Civil Procedure Rules, 2010)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rose Akeyo Onyuka v Martin Omondi Ogweno [2019] KEELC 1938 (KLR)", Case Analysis (2019). Migori ELCC (O.S.) based on Originating Summons dated 29th November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1938/eng@2019-06-25

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