Joseph Omol Kowiti v Micheal Okworo Wanga [2020] KEELC 715 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether non-annexation of an abstract/extract of title to an adverse possession originating summons renders it fatally defective
No; the defect is curable and the preliminary objection fails
Order 37 Rule 7(2) requires a certified extract of title to be annexed. However, the defendant's own replying affidavit annexed the official search and title deed, which were indicative of title to the suit land. Guided by Article 159(2)(d) on undue regard to procedural technicalities and authorities inclining towards determination on merits, the court held the defect curable and distinguished Kweyu v Omuto and similar authorities.
Whether 'title' as used in Section 38 and Order 37 Rule 7 requires the plaintiff alone to annex an extract where the root of title is disputed
Title is linked to proprietorship; the defendant's annexed search and title deed were indicative of title, and where a registered proprietor's root of title is under challenge, danging the instrument of title is not sufficient proof of ownership
The court adopted the Black's Law Dictionary definition of title and the Court of Appeal's holding in Munyu Maina v Hiram Gathiha Maina that a registered proprietor whose root of title is under challenge cannot rely merely on the instrument of title. The LRA defines 'proprietor' but not 'title', and the defendant's exhibits were indicative of title in respect of the suit land.
Legal principles established
#- Failure to annex a certified extract of title to an originating summons under Order 37 Rule 7 is a procedural technicality curable under Article 159(2)(d), not a ground for striking out
Court orders
#- 1.The preliminary objection dated 16th July, 2020 and filed on 17th July, 2020 is disallowed as devoid of merit
- 2.Costs be in the cause
- Jurisdiction invoked
- Environment and Land Court Act, Section 19(1); Article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Omol Kowiti v Micheal Okworo Wanga [2020] KEELC 715 (KLR)", Case Analysis (2020). Not stated in the judgment (Environment and Land Court, Migori; originating summons under Section 38 Limitation of Actions Act). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/715/eng@2020-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.