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ELCStruck OutELC Case No. 77 of 2018· [2020] KEELC 28 (KLR)

Tobias Odhiambo Miron v Paul Odhiambo Were [2020] KEELC 28 (KLR)

Environment and Land Court
30 April 2020
NMN.A. Matheka
813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an adverse possession land claim because the plaintiff used the wrong filing procedure, showing correct paperwork matters as much as the claim itself.

What this practically means

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Executive summary

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The plaintiff sued the defendant by plaint seeking to be registered as proprietor of land parcel S/Wanga/Lureko/1977 by adverse possession, alleging that he entered the land in 2005, cultivated sugar cane among other crops, and has been in open, uninterrupted occupation for more than twelve years without hindrance from the registered owner. He also sought an order that the Deputy Registrar sign transfer instruments in his favour, plus costs and interest. The defendant was served but neither attended court nor filed a defence. The court identified a preliminary issue: whether the suit was properly brought. It held that under section 19 of the Civil Procedure Act suits must be instituted in the manner prescribed by the rules, and that Order 37 rule 7 of the Civil Procedure Rules specifically requires an application under section 38 of the Limitation of Actions Act - the statutory route for adverse possession claims over registered land - to be made by originating summons supported by an affidavit with a certified extract of title. Relying on Joseph Kibowen Chemjor v William C. Kasera, the court distinguished suits enforcing actions from applications seeking orders without determining rights, but concluded that an adverse possession claim is an action requiring the prescribed originating summons procedure. Because Order 37 rule 7 is drafted in mandatory terms, the plaint-based suit was fatally defective and was struck out. As the suit was undefended, the court made no orders as to costs.

Key legal issues

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01

Procedure for commencing a claim for adverse possession

Holding

A claim for adverse possession under section 38 of the Limitation of Actions Act must be brought by originating summons supported by an affidavit with a certified title extract, per Order 37 rule 7; a plaint is not the prescribed manner.

Reasoning

The court noted that section 19 of the Civil Procedure Act requires suits to be instituted as prescribed by rules, and Order 3 rule 1 requires presentation of a plaint or such other manner as prescribed. Order 37 rule 7 specifically prescribes originating summons for adverse possession claims. Since the rule is mandatory, the plaintiff's plaint did not comply and the suit was struck out as fatally defective.

p. 2

Legal principles established

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  • An application under section 38 of the Limitation of Actions Act for registration by adverse possession must be made by originating summons under Order 37 rule 7 of the Civil Procedure Rules, and a suit brought by plaint in breach is fatally defective.

Court orders

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  1. 1.The suit is struck out as fatally defective
  2. 2.No orders as to costs, the suit having been undefended

Authorities

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Legislation

  • Civil Procedure ActSection 19
  • Civil Procedure RulesOrder 3 Rule 1; Order 37 rule 7
  • Limitation of Actions ActSections 37 and 38
  • Registered Land Actnull

Cases cited (1)

  • Joseph Kibowen Chemjor vs William C. Kasera
    (2013) eKLR
Jurisdiction invoked
Section 19 Civil Procedure Act; Order 37 rule 7 Civil Procedure Rules; Section 38 Limitation of Actions Act

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, "Tobias Odhiambo Miron v Paul Odhiambo Were [2020] KEELC 28 (KLR)", Case Analysis (2020). ELC Case No. 77 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/28/eng@2020-04-30

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