Daniel Kipilat Rotich & 32 others v David Sironga Tukai & another [2020] KEELC 2057 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a land search certificate satisfies the filing requirements for an adverse possession claim, so the defendant's attempt to strike out the case failed.
What this practically means
#Executive summary
#Key legal issues
#Whether annexing a copy of the title document and a certificate of official search satisfies Order 37 rule 7(2)
Yes. The certificate of official search, issued under sections 34 and 35 of the Land Registration Act and conclusive evidence of its contents, adequately satisfies the requirements of Order 37 rule 7, and the rule does not require an original extract.
The court noted the annexures were photocopies of the title and official search. Relying on Johnson Kinyua v Simon Gitura Rumuri and the Land Registration Act provisions, it held the certificate of search, being conclusive evidence of the register's contents, serves the purpose of the rule — ascertaining the registered owner as at filing. Whether an original is needed is a matter for directions under Order 37 rule 18 or trial.
The nature of a valid preliminary objection
A preliminary objection must raise a pure point of law, argued on the assumption that the facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or discretion exercised.
The court restated the settled position from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Oraro v Mbaja before considering whether the objection, framed as a violation of a mandatory procedural rule, warranted striking out the suit.
Legal principles established
#- A certificate of official search can adequately satisfy the requirement of a certified extract of title under Order 37 rule 7 of the Civil Procedure Rules
- A certified extract of title is not the same thing as a copy of the title deed
- Order 37 rule 7(2) does not require that an original of the certified extract of the title be annexed
Court orders
#- 1.The preliminary objection dated 23rd October 2019 is dismissed
- 2.Costs of the preliminary objection to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction under Order 37 rule 7 of the Civil Procedure Rules and section 38 of the Limitation of Actions Act (adverse possession claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kipilat Rotich & 32 others v David Sironga Tukai & another [2020] KEELC 2057 (KLR)", Case Analysis (2020). Not stated in the judgment (Originating Summons dated 23rd September 2019, ELC Narok, transferred to Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2057/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.