Catherine Wanja Njoka & another v John Njagi Dan; Mutegi Dan (Proposed Interested Party) [2020] KEELC 555 (KLR)
The bottom line
#A Kenyan court confirmed that a certificate of official search is enough to start an adverse possession land claim, and rejected an attempt to have the case thrown out.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was defective for failure to annex a certified extract of title under Order 37 Rule 7(2) of the Civil Procedure Rules
No; a certificate of official search suffices for land registered under the Registered Land Act/Land Registration Act regime
Following the Court of Appeal in Johnson Kinyua v Simon Gitura Rumuri, reference to certified extracts in Order 37 applies to other registration systems, not Registered Land Act-type registration. For such registered land, a search certificate signed by the Registrar constitutes evidence of the register entries. The plaintiffs had annexed a certificate of official search, so ground 2 of the objection failed.
Whether ground 1 of the objection (that the suit is null and void ab initio and an abuse of process) was a proper preliminary objection
It was not; the ground was abstract, nebulous, and invited argument and canvassing of facts
The court held that the first ground, as framed, attracted arguments rather than raising a pure point of law. The defendant introduced the question of when time for adverse possession accrues against an administrator only in submissions. Such factual and argumentative issues cannot be determined on a preliminary objection and must await the hearing of the suit.
Whether time for adverse possession could run against the defendant before his registration as owner in March 2019, he being an administrator of the estate
Not determined; the issue was raised only in submissions and required argument, so it was left for the hearing
The defendant argued that time could not run against him prior to his registration since he had no proprietary interest. The plaintiffs countered that this was a factual issue requiring argument. The court agreed that the issue, as raised, was not a pure point of law and declined to determine it at the preliminary objection stage.
Legal principles established
#- A certificate of official search adequately satisfies the requirements of Order 37 Rule 7 of the Civil Procedure Rules for suits on registered land, in place of a certified extract of title
- A ground in a preliminary objection that is nebulous and invites argument is not a pure point of law and cannot sustain the objection
Court orders
#- 1.The Notice of Preliminary Objection dated 2nd June, 2020 and filed by the defendant is hereby dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land claims for adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Wanja Njoka & another v John Njagi Dan; Mutegi Dan (Proposed Interested Party) [2020] KEELC 555 (KLR)", Case Analysis (2020). Not stated on the face of the ruling (Chuka ELC Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/555/eng@2020-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.