Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutOriginating Summons dated 20th January 2018· [2020] KEELC 3275 (KLR)

Elijah Gachugi Ndegwa v County Lands Registrar Lamu & 4 others [2020] KEELC 3275 (KLR)

Environment and Land Court
13 March 2020
JOJ.O. Olola
1,190 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out an adverse possession land claim because the buyer occupied under a sale agreement and omitted a certified title extract.

What this practically means

#

Executive summary

#
The Applicant, Elijah Gachugi Ndegwa, filed an Originating Summons seeking an injunction restraining the County Land Registrar, Lamu from issuing title deeds over Lamu West/Ndambwe/Mashambani Nos. 349, 350 and 357 to the 2nd to 4th Respondents, an order that he be registered as proprietor, and a vesting order, claiming he had occupied the land for over 14 years under the doctrine of adverse possession, having purchased it from one Mohamed Abdalla. The 2nd to 4th Respondents denied the purchase, asserting Mohamed Abdalla was merely their caretaker. The 1st and 5th Respondents, through the Attorney General, objected that the injunction contravened Section 16 of the Government Proceedings Act, and that the summons failed to comply with Order 37 Rule 7(2) of the Civil Procedure Rules for want of a certified extract of title. The court held that an injunction could not issue against the Land Registrar under Section 16 of the Government Proceedings Act. On adverse possession, the court found no extract of title was annexed, making it impossible to compute time, and that the Applicant's entry was pursuant to a sale agreement, rendering him a licensee whose possession was permissive and thus incapable of being adverse. The court found the Originating Summons premature and misconceived and struck it out with costs to the Respondents.

Key legal issues

#
01

Whether an injunction could issue against the Land Registrar Lamu

Holding

No injunction can issue against a Government officer where it would grant relief against the Government

Reasoning

The court invoked Section 16(2) of the Government Proceedings Act, which bars injunctions against government officers where the effect would be relief against the Government unavailable in direct proceedings against the Government. The injunction sought against the 1st Respondent therefore could not issue.

p. 2
02

Whether the Applicant had acquired title by adverse possession

Holding

The claim failed for non-compliance with Order 37 Rule 7(2) and because possession was permissive

Reasoning

The supporting affidavit lacked a certified extract of title, so the court could not compute time for adverse possession. Further, the Applicant's entry was pursuant to a sale agreement with Mohamed Abdalla, making him a licensee rather than a trespasser, defeating an adverse possession claim. The summons was premature and misconceived.

p. 2

Legal principles established

#
  • A claim of adverse possession cannot succeed where possession is held with the permission of the owner or in pursuance of an agreement of sale or lease
  • No injunction may issue against a Government officer where it would give relief against the Government which could not be obtained in proceedings against the Government
  • An application under Section 38 of the Limitation of Actions Act must be supported by an affidavit annexing a certified extract of title

Court orders

#
  1. 1.The Originating Summons is struck out
  2. 2.Costs to the Respondents

Authorities

#

Legislation

  • Government Proceedings ActSection 16(2) and Section 16(1)(i)
  • Limitation of Actions Act (Cap 22)Section 38(1)
  • Civil Procedure RulesOrder 37 Rule 7(2)
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) hearing an Originating Summons under Section 38(1) of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Elijah Gachugi Ndegwa v County Lands Registrar Lamu & 4 others [2020] KEELC 3275 (KLR)", Case Analysis (2020). Originating Summons dated 20th January 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3275/eng@2020-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.