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ELCStruck OutOriginating Summons dated 3rd May, 2018 (Kericho ELC)

Wesley Kipyegon Bor & 8 others v Richard Pares & 3 others [2020] KEELC 2586 (KLR)

Environment and Land Court
29 April 2020
2,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st and 2nd defendants, Richard Pares and Mutai Pares, raised a preliminary objection against an originating summons filed on 3rd May 2018 by nine plaintiffs claiming portions of land parcel KERICHO/EAST SOTIK SS/203 by adverse possession. The objection had two limbs: first, that the plaintiffs failed to annex a certified extract of title to the supporting affidavit as required by Order 37 rule 7(2) of the Civil Procedure Rules, 2010; and second, that the title to the suit parcel no longer exists because the estate of the original registered owner, the late Kipkorir arap Chebogoiyo, had been distributed to beneficiaries and the land subdivided, leaving no title to be cancelled. The defendants sought the striking out of the suit with costs. The plaintiffs opposed, arguing the same issues had already been determined in earlier interlocutory rulings and were therefore res judicata, and that the second limb turned on disputed facts unsuitable for a preliminary objection; they cited among others Mukhisa Biscuit Company v West End Distributors. The court rejected the res judicata plea, holding that the earlier rulings dealt with the issue in the context of applications, not the suit itself. The court held the annexation requirement mandatory, applying Kweyu v Omuto, George Kamau Macharia v Mary Gathoni Kamau and Symon Gatutu v East African Portland Cement, and held that the existence of a title is a matter of law. Upholding the objection, the judge struck out the originating summons with costs to the 1st and 2nd defendants on 29th April 2020.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the issue of failure to annex an extract of title is res judicata having been raised in earlier interlocutory applications
  2. 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. 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

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01

Whether the prior interlocutory rulings rendered the annexation issue res judicata

Holding

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

Reasoning

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.

p. 3
02

Whether annexation of a certified extract of title under Order 37 rule 7(2) is mandatory

Holding

Yes - the requirement is mandatory and its omission is a fact not in dispute and a pure point of law

Reasoning

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.

p. 3
03

Whether the non-existence of the suit title is a matter of fact unsuitable for preliminary objection

Holding

It is a matter of law; a title is a legal document created and extinguished through legal processes

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The preliminary objection raised by the 1st and 2nd defendants is upheld
  2. 2.The plaintiffs' originating summons is struck out
  3. 3.The 1st and 2nd defendants are awarded costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 4

Costs

The suit was struck out with costs to the 1st and 2nd defendants.

Quotable passages

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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.
p. 4Final orders - preliminary objection upheld, suit struck out 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.”
p. 3Mandatory requirement of Order 37 rule 7(2)
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.
p. 3Purpose of the certified extract of title
The purpose is different. The context is different. And so also is the intended outcome. RESJUDICATA therefore does not apply.
p. 3Res judicata inapplicable to preliminary objection raised in different context

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.