David Kimalel Birir v Sammy Kiprotich Tangus & another [2020] KEELC 1113 (KLR)

Order 37 Rule 7(2) of the Civil Procedure Rules, which governs adverse possession claims, requires the originating summons to be supported by an affidavit annexing a certified extract of the title to the land in question. Despite paragraph 10 of the affidavit asserting that a certified register and green card had been annexed, no extract of title was in fact annexed, and the omission was repeated in the amended summons. Following Wilson Kazungu Katana, the requirement is mandatory and the defect is fatal, warranting striking out with costs.

Both sides agreed the Plaintiff took possession through his mother, who either bought the land in 1983 or was allowed to farm it to repay a liquor debt. So long as the Plaintiff's possession derived from that relationship, it could not be adverse to the registered proprietor's title. Further, the Plaintiff never claimed his possession was adverse to his mother's interest; if anything he pursued the land for her estate, without filing as her legal representative.

The exact date of the mother's death in 2011 was not disclosed; possession possibly continued until police intervention in 2014 or the 1st Defendant's taking possession in 2017. Counting from 1st January 2011 to 31st December 2017 gives only seven years, below the twelve years required under the Limitation of Actions Act. The Plaintiff therefore failed to discharge the burden of proving continuous adverse possession on a balance of probabilities.

Having failed to prove his claim against both Defendants, who filed pleadings and engaged counsel, the Plaintiff was ordered to pay the costs of the suit.