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ELCDismissedOriginating Summons dated 23rd November 2015· [2019] KEELC 2055 (KLR)

Paul Njoroge Mwangi v Geoffrey Gioche Kamau & another [2019] KEELC 2055 (KLR)

Environment and Land Court
29 July 2019
995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed an attempt to strike out an adverse possession claim, confirming such objections must be pure points of law, not factual disputes requiring evidence.

What this practically means

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Executive summary

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The plaintiff brought an Originating Summons dated 23rd November 2015 seeking a declaration that he had become entitled to parcel Kiambogo/Kiambogo Block 2/7050 (Mwariki) in Nakuru by adverse possession, having occupied it for over 16 years since 1998. The defendants, through a Notice of Preliminary Objection dated 23rd October 2017, sought striking out of the summons on three grounds: failure to annex a certified copy of title; the death of the 1st defendant and non-joinder of the estate; and that the claim disclosed an alleged sale rather than adverse possession. Justice D. O. Ohungo applied the Mukisa Biscuit test that a preliminary objection must be a pure point of law argued on assumed facts. He held the annexation requirement under Order 37 rule 7 mandatory but found a certified extract of title (PMM 5b) had in fact been annexed, defeating the first limb. The remaining two limbs were matters of fact requiring evidence: the plaintiff had never asserted the 1st defendant's death, the defendants filed no replying affidavit, and the question whether the occupation was permissive or adverse could only be resolved at trial, a sale transaction not being an automatic bar since time runs against a possessor only once any licence is determined. The preliminary objection was dismissed with costs to the plaintiff. The judgment was delivered on 29th July 2019 after delay attributable to the judge's medical leave, which the court regretted.

Key legal issues

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01

Whether failure to annex a certified extract of title renders an adverse possession originating summons defective

Holding

The limb failed because a certified extract of title (marked PMM 5b) was in fact annexed to the supporting affidavit; the requirement is mandatory but was complied with

Reasoning

Order 37 rule 7 of the Civil Procedure Rules requires that an originating summons under section 38 of the Limitation of Actions Act be supported by an affidavit to which a certified extract of title is annexed. The court held this requirement mandatory, but on perusal of the record found the certified extract of the title to Kiambogo/Kiambogo Block 2/7050 (Mwariki) annexed and marked PMM 5b, so no defect arose.

p. 2
02

Whether the death of the 1st defendant and non-joinder of the estate could be raised by way of preliminary objection

Holding

This was a matter of fact requiring evidence, not a pure point of law, and could not ground a preliminary objection

Reasoning

The plaintiff never stated in the supporting affidavit that the 1st defendant was deceased; the point was introduced by the defendants themselves, who had filed no replying affidavit. Since establishing death and the status of the estate would require ascertainment of facts and evidence, the ground was unsuitable for determination as a preliminary objection.

p. 2
03

Whether an alleged sale transaction defeats an adverse possession claim at the preliminary stage

Holding

No; the court must take evidence to determine the nature of the occupation, and a sale transaction may mutate into adverse possession once any licence or permission is determined

Reasoning

Relying on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd and Wambo v Njuguna, the court reasoned that possession under a valid sale agreement is not adverse while the licence subsists; time begins to run only upon its determination. The court also had to assess how the alleged sale impacted the 2nd defendant, the alleged registered proprietor, which required evidence.

p. 2

Legal principles established

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  • A valid preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
  • The requirement under Order 37 rule 7 to annex a certified extract of title to an adverse possession originating summons is mandatory
  • The existence of a sale transaction per se is not an automatic bar to a claim for adverse possession; possession under a valid sale agreement becomes adverse only upon determination of the licence

Court orders

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  1. 1.The Notice of Preliminary Objection dated 23rd October 2017 is dismissed
  2. 2.Costs of the preliminary objection awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 7
  • Limitation of Actions Actsection 38

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    [2005] eKLR
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR
  • WAMBO v NJUGUNA
    1983 KLR 172
Jurisdiction invoked
Order 37 rule 7 of the Civil Procedure Rules; section 38 of the Limitation of Actions Act (adverse possession claim)

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, "Paul Njoroge Mwangi v Geoffrey Gioche Kamau & another [2019] KEELC 2055 (KLR)", Case Analysis (2019). Originating Summons dated 23rd November 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2055/eng@2019-07-29

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