Matara & another v Parish) & 6 others (Environment & Land Case 80 of 2021) [2022] KEELC 3237 (KLR)
The bottom line
#A Kenyan land court allowed plaintiffs to add an adverse possession claim to an existing suit, confirming such claims need not be filed by originating summons.
What this practically means
#Executive summary
#Key legal issues
#Leave to amend plaint to add adverse possession claim
Application for amendment allowed; the adverse possession claim does not change the cause of action into one of substantially different character and relates to facts already in issue (interference with and permanent injunction over the suit land)
The court exercised its discretion in favour of amendment, noting that the permanent injunction prayer already in the plaint raises the same facts as the adverse possession plea. Refusing the amendment would lock the plaintiffs out of litigating the claim, since any subsequent suit would be barred by res judicata under Explanation (4) to section 7 of the Civil Procedure Act. Article 159(2)(d) and sections 1A, 1B and 3A of the Civil Procedure Act favour substantive justice over procedural technicality.
Whether adverse possession must be sought by originating summons under Order 37 Rule 7
No - it may be raised by plaint, defence or counterclaim; originating summons is required only where a party applies to be registered as proprietor by adverse possession
Relying on Chevron (K) Ltd v Harrison Charo Wa Shutu and Emily Chepkor Chepkwony v Paul Arap Chandoek, the court noted that courts have accepted adverse possession claims pleaded in plaints or defences, that originating summons is unsuitable for complex factual disputes, and that Order 37 Rule 19 empowers courts to convert originating summons into plaints. Striking out such a plea would elevate procedural technicality contrary to Article 159(2)(d).
Legal principles established
#- An adverse possession claim may properly be pleaded by way of plaint; originating summons procedure under Order 37 Rule 7 is not mandatory for such a claim
- An amendment to a plaint may be refused where it is inconsistent with the original pleadings or entirely alters the nature of the suit
- A matter which might and ought to have been raised in a former suit is deemed to have been directly and substantially in issue under Explanation (4) to section 7 of the Civil Procedure Act
Court orders
#- 1.The plaintiffs' draft amended plaint be deemed to have been filed upon payment of the requisite fee which must not exceed seven days from the date thereof inclusive of the service period
- 2.The defendants are allowed fourteen (14) days to file and serve amended defence if any
- 3.The matter to be mentioned in open court on July 4, 2022 for further directions
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the land dispute; procedural jurisdiction under sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matara & another v Parish) & 6 others (Environment & Land Case 80 of 2021) [2022] KEELC 3237 (KLR)", Case Analysis (2021). ELC Case No. 80 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3237/eng@2022-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.