Wesley Kipyegon Bor & 8 others v Richard Pares & 3 others [2020] KEELC 2586 (KLR)
The bottom line
#Nine land claimants lost their adverse possession case in Kericho because they failed to attach a certified extract of the land title to their court documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the issue of failure to annex an extract of title is res judicata having been raised in earlier interlocutory applications
- 2.Whether failure to annex a certified extract of title as required by Order 37 rule 7(2) can ground a preliminary objection and whether it is a pure point of law
- 3.Whether the alleged non-existence of the title to KERICHO/EAST SOTIK SS/203 is a point of law suitable for a preliminary objection
Key legal issues
#Whether the prior interlocutory rulings rendered the annexation issue res judicata
Res judicata does not apply because the issue was previously raised in the context of interlocutory applications, not as a preliminary objection addressing the suit
The court distinguished the earlier rulings where the annexation issue arose as a response to applications for restraining orders. Since the context, purpose and intended outcome of the present preliminary objection differ - it targets the suit itself for determination in limine - the doctrine of res judicata is not attracted.
Whether annexation of a certified extract of title under Order 37 rule 7(2) is mandatory
Yes - the requirement is mandatory and its omission is a fact not in dispute and a pure point of law
The court reasoned that the certified extract confirms that the correct registered owner has been sued and that the land still exists as a legal entity; otherwise proceedings would be futile or could condemn unheard third parties who now hold subdivided portions.
Whether the non-existence of the suit title is a matter of fact unsuitable for preliminary objection
It is a matter of law; a title is a legal document created and extinguished through legal processes
The court held that the creation, existence and non-existence of a title are matters of law because a title is a legal document created through a legal process. The plaintiffs supplied no evidence suggesting the title existed, so there was no disputed factual matrix requiring ascertainment.
Legal principles established
#- An originating summons for adverse possession must be supported by an affidavit to which a certified extract of the title to the land is annexed, and failure to do so is fatal
- Adverse possession proceedings can only be maintained against the title holder or current registered owner of the suit land
Court orders
#- 1.The preliminary objection raised by the 1st and 2nd defendants is upheld
- 2.The plaintiffs' originating summons is struck out
- 3.The 1st and 2nd defendants are awarded costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Order 37 rule 7(2) of the Civil Procedure Rules, 2010 (adverse possession suit)
Relief refused
#Plaintiffs' claim to be declared adverse possessors of portions of KERICHO/EAST SOTIK SS/203
The originating summons was fatally flawed for failure to annex a certified extract of title, and the title itself was said not to exist; the preliminary objection was upheld and the suit struck out
Costs
The suit was struck out with costs to the 1st and 2nd defendants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot, in light of the foregoing, is that the preliminary objection raised has to be upheld. I am in agreement with the 1 st and 2nd defendant and I hereby strike out the suit herein with costs.
“The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.”
requiring a certified extract is not a talismanic hoop to be jumped by an intended disseisor but the objective is to provide a means to the court to ascertain the existence and proprietorship of the suit land.
The purpose is different. The context is different. And so also is the intended outcome. RESJUDICATA therefore does not apply.
Issues in the judgment
#The headnote-style description of the objection states the plaintiffs failed to annex 'an abstract of title', while the analysis consistently refers to an 'extract of title'; the two terms appear to be used interchangeably
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wesley Kipyegon Bor & 8 others v Richard Pares & 3 others [2020] KEELC 2586 (KLR)", Case Analysis (2020). Originating Summons dated 3rd May, 2018 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2586/eng@2020-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.