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ELCDismissedNot stated in judgment· [2021] KEELC 1153 (KLR)

Emily Chepkor Chepkwony v Paul Arap Chandoek [2021] KEELC 1153 (KLR)

Environment and Land Court
4 November 2021
1,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that an adverse possession land claim filed by plaint (not originating summons) is valid and cannot be struck out on that technicality alone.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (J M Mutungi, J) delivered virtually on 4th November 2021 on a notice of preliminary objection dated 15th March 2021 by the defendant, registered proprietor of LR No. Nakuru/Saino Settlement Scheme/1354. The defendant sought striking out of the plaintiff's suit, arguing that a claim founded on adverse possession over his title issued on 12th October 2005 ought to have been commenced by originating summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, and that neither the overriding objective nor Article 159(2)(d) could cure the alleged fatal defect. The plaintiff countered that her claim raised complex issues unsuitable for originating summons procedure and relied on the Court of Appeal's decision in Chevron (K) Ltd v Harrison Charo Wa Shutu, which confirmed that adverse possession may be pleaded by plaint. The court applied the Mukisa Biscuit threshold, found the objection raised a pure point of law, but held on the merits that a suit is not fatally defective merely because it is commenced by plaint, noting Order 37 Rule 19 permits conversion of originating summons into plaints and that the prayers sought oral evidence. Upholding the objection would elevate procedural technicalities contrary to Article 159(2)(d) and the overriding objective. The preliminary objection was dismissed with costs abiding the outcome of the suit.

Key legal issues

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01

Whether an adverse possession claim commenced by plaint rather than originating summons is fatally defective

Holding

No - a plaint is a competent mode of commencing such a claim; originating summons procedure is not suitable for complex and contentious questions of fact and law, and the prayers sought here invite oral evidence

Reasoning

Relying on the Court of Appeal's exposition in Chevron (K) Ltd v Harrison Charo Wa Shutu, which followed Wabala v Okumu, Mariba v Mariba and Gulam Mariam Noordin v Julius Charo Karisa, the court held that adverse possession may be raised by plaint, defence or counterclaim. Further, Order 37 Rule 19 permits conversion of an originating summons into a plaint, confirming the plaint procedure cannot be fatally defective. No prejudice would arise from a full trial.

p. 2
02

Whether procedural technicality should trump substantive justice

Holding

No - upholding the objection would elevate procedural technicalities contrary to Article 159(2)(d) and the overriding objective under sections 1A, 1B and 3A of the Civil Procedure Act and sections 3 and 19(1) of the Environment and Land Court Act

Reasoning

The court reasoned that striking out the suit would leave issues unresolved and necessitate a fresh suit, contrary to the expeditious, just and efficient administration of justice mandated by the overriding objective and the oxygen principle mirrored in the Environment and Land Court Act.

p. 2

Legal principles established

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  • A suit founded on adverse possession is not rendered fatally defective merely because it is commenced by way of plaint rather than originating summons
  • Order 37 Rule 19 empowers the court to convert an originating summons into a plaint and proceed as if the action had been commenced by plaint

Court orders

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  1. 1.The preliminary objection dated 15th March 2021 is dismissed
  2. 2.The costs of the preliminary objection will abide the outcome of the suit
Jurisdiction invoked
Environment and Land Court Act (court acting in original civil proceedings); overriding objective under sections 1A, 1B and 3A Civil Procedure Act and Article 159(2)(d) of the Constitution

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, "Emily Chepkor Chepkwony v Paul Arap Chandoek [2021] KEELC 1153 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1153/eng@2021-11-04

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