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ELCOtherOriginating Summons dated 10th January 2018 (Busia)· [2019] KEELC 2211 (KLR)

Jacinta Akumu Ongombe & 2 others v Chrispinus Odhiambo Mingili & 2 others [2019] KEELC 2211 (KLR)

Environment and Land Court
29 July 2019
AKA. K. Kaniaru
1,436 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Busia court refused to award land by adverse possession without a full hearing, ruling that respondents who filed responses must be heard on the merits.

What this practically means

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Executive summary

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The Applicants instituted an Originating Summons on 16th January 2018 claiming the whole of L.R MARACHI/ELUKONGO/2942 and 1.88 acres of L.R MARACHI/ELUKONGO/2943 by adverse possession. They averred that the 1st Applicant's late husband bought 8 acres out of the original parcel MARACHI/ELUKONGO/1348 from the late Mingili Auma in 1972, took possession, and remained for 45 years without any demand to vacate. After the purchaser's death and later the seller's death, the 1st Respondent obtained letters of administration and subdivided parcel 1348 into 2941, 2942 and 2943, disregarding the Applicants' alleged entitlement. The Respondents filed responses on 8th May 2018, asserting permissive occupation of only half an acre and denying any sale. At a mention on 4th February 2019 the court, unaware of the responses on record, treated the Summons as an ordinary application and directed written submissions. In this ruling the judge expressly corrected that position, finding it wrong and unfair to the Respondents, whose counsel's contrary statement by the Applicants was misleading. The court declined to grant the prayers sought at that stage, holding that the Respondents were entitled to a hearing and that the matter was still at an early stage. The matter was directed to be prepared for full hearing so that judgment could be rendered on the merits. Costs were ordered to be in the cause.

Key legal issues

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01

Whether an unopposed-seeming Originating Summons can be disposed of by written submissions despite filed responses

Holding

No - the court corrected its earlier direction, holding that the Respondents' responses had to be considered and the matter set down for full hearing

Reasoning

On 4/2/2019 the court, unaware of responses filed on 8/5/2018, treated the Originating Summons as an ordinary application and directed written submissions. On reviewing the file in chambers the judge found this position wrong and the Applicant's counsel's statement misleading. Ignoring the responses would be unfair to the Respondents, who were entitled to a hearing, and the matter was still at an early stage.

p. 2

Legal principles established

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  • A respondent who has filed responses is entitled to a hearing and a suit cannot be disposed of on submissions as if unopposed where responses are on record

Court orders

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  1. 1.Declined to grant the prayers sought at this interlocutory stage
  2. 2.Directed that the matter be prepared for hearing so that a judgment on the merits can be made
  3. 3.Ordered costs in the cause
Jurisdiction invoked
Original jurisdiction over adverse possession claim by Originating Summons

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, "Jacinta Akumu Ongombe & 2 others v Chrispinus Odhiambo Mingili & 2 others [2019] KEELC 2211 (KLR)", Case Analysis (2019). Originating Summons dated 10th January 2018 (Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2211/eng@2019-07-29

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