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ELCDismissedOriginating Summons dated 24/6/2013 (Meru)· [2019] KEELC 3859 (KLR)

Andrew Likaibua Kathuku alias Nguga M’kaibi v Jacob Miriti Kaaria & 2 others [2019] KEELC 3859 (KLR)

Environment and Land Court
8 April 2019
JKJ G Kemei
2,917 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out an adverse possession claim because the landowner suing failed to attach a certified copy of the title to his court documents.

What this practically means

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Executive summary

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The Plaintiff brought an Originating Summons dated 24/6/2013 claiming 0.69 hectares (1.70 acres) of parcel NYAMBENE/KIRINDINE 'A'/4353 by adverse possession. He deposed that his original parcel 3448 was, in collusion with the Land Adjudication officer, cancelled in 2000 and re-registered in the name of the 1st Defendant, who subdivided it into 4351, 4352 and 4353, selling the first two and retaining 4353, over which the Plaintiff remained in occupation since 1948. The 1st Defendant died and was substituted; the substituted 1st Defendant supported the Plaintiff's claim, conceding the subdivision was illegal and secret. An interested party, Daniel Muthamia Kaaria, was enjoined on the application of a stranger to the suit in respect of parcel 3594. A 2nd Defendant appeared on the record without any enjoinment. The court framed four issues: the joinder of the interested party, competence of the summons for want of a certified copy of title, adverse possession, and costs. It found the joinder unnecessary and vacated the inhibitory orders over parcel 3594; declared and removed the 2nd Defendant as improperly joined; disbelieved the defence witnesses; and held the suit incompetent for failure to annex a certified extract of title under Order 37 rule 7, following Kasuve v Mwaani Investments and Cherono v Kinyanjui. The adverse possession question was not determined. The suit was dismissed, the 2nd Defendant and interested party were expunged, and costs were awarded to the 1st Defendant against the Plaintiff and to the interested party against the 2nd Defendant.

Key legal issues

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01

Joinder of the interested party

Holding

The joinder was unnecessary as the interested party had no dispute with the Plaintiff and his claim concerned a different parcel derived from a different original parcel

Reasoning

The interested party admitted in his witness statement and evidence that he had no dispute with the Plaintiff; his claim concerned parcel 3594 purchased in 1987, and the plan showed that parcel derives from parcel 2680, not 3448 from which the suit land derives. The 2nd Defendant had no cause of action against him in this matter.

p. 2
02

Status of the 2nd Defendant in the suit

Holding

The 2nd Defendant was improperly before the court, having been enjoined without any application or leave, and was removed from the record

Reasoning

The record showed no application for joinder or substitution of the 2nd Defendant, nor evidence of legal representation of the deceased's estate. Having sauntered into the suit without leave, his proceedings were expunged from the record.

p. 3
03

Incompetence of the Originating Summons for failure to annex a certified copy of title

Holding

The suit was incompetent and was dismissed because the Plaintiff failed to annex a certified copy of the title or extract of the green card as mandated by Order 37 rule 7 of the Civil Procedure Rules

Reasoning

Order 37 rule 7 requires that an Originating Summons under Section 38 of the Limitation of Actions Act be supported by an affidavit annexing a certified extract of title. The Plaintiff only annexed an extract of the green card for parcel 4093 registered in his own name, against which he could not claim adverse possession. Determining the claim without identifying the true registered owner risked condemning unheard persons and offending Article 50 of the Constitution.

p. 3
04

Credibility of the 2nd Defendant's evidence

Holding

The 2nd Defendant's evidence, including an altered will and inconsistent claims about the sale of the suit land, was disbelieved, as was the evidence of DW3, DW4 and DW5

Reasoning

The will produced by the 2nd Defendant referred to parcel 4153 sold to Gitobu Imanyara with an apparent alteration superimposing 4353, contradicting his claim of sale to Stephen Mutai. The neighbouring witnesses DW3-DW5 gave sketchy, skewed evidence denying the Plaintiff's occupation which the court could not believe.

p. 3

Legal principles established

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  • An application under Section 38 of the Limitation of Actions Act must be by Originating Summons supported by an affidavit annexing a certified extract of title to the land; failure to do so is fatal to the claim
  • Adverse possession must be established against a known, identified registered owner, not in a vacuum

Court orders

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  1. 1.The Court finds and holds that the suit is incompetent. It is dismissed with costs.
  2. 2.The 2nd Defendant and the Interested party are expunged from suit together with all the proceedings in their respect.
  3. 3.The orders issued on the 16/10/17 inhibiting parcel No NYAMBENE/KIRINDINE/3594 be and are hereby vacated forthwith.
  4. 4.The Plaintiff shall pay the 1st Defendant's costs. The 2nd Defendant shall pay the costs of the Interested Party.

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 37 rule 7
  • Constitution of KenyaArticle 50

Cases cited (2)

  • Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others
    [2004] eKLR
  • Moses Chepkonga Cherono v Margaret Njoki Kinyanjui
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction under Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules (adverse possession claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Andrew Likaibua Kathuku alias Nguga M’kaibi v Jacob Miriti Kaaria & 2 others [2019] KEELC 3859 (KLR)", Case Analysis (2019). Originating Summons dated 24/6/2013 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3859/eng@2019-04-08

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