Ndonye & 2 others v Land Registrar Machakos & another (Environment & Land Case E021 of 2021) [2022] KEELC 3506 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an adverse possession claim because the claimants failed to attach a certified extract of title—proof that procedure can defeat a 37-year land claim.
What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection as a pure point of law
The objection was valid as all its grounds were points of law
Relying on the Mukisa Biscuits principle, the court held that a preliminary objection must rest on a pure point of law. Having examined the grounds raised (breach of Order 37 Rule 7, limitation provisions and the maxim nec vi, nec clam, nec precario), the court found them all to be points of law and therefore properly taken.
Whether the 2nd Plaintiff's adverse possession claim could be determined on the objection
The 12-year period had not run; the 2nd Plaintiff's suit was struck out
The 2nd Plaintiff took possession in 2012 and the suit was filed on 3rd August 2021, a period of 9 years. Since adverse possession requires exclusive open possession for over 12 years, the claim had not matured and there was no need for trial on that claim.
Whether the 1st Plaintiff's possession ceased in 2012
This was a disputed question of fact unsuitable for determination on a preliminary objection
The 1st Defendant alleged the 1st Plaintiff ceased occupation in 2012; the 1st Plaintiff said he sold only part of the land and remained in possession. As this is a factual dispute, it could not be resolved as a pure point of law, so that ground of the objection failed.
Non-attachment of a certified extract of title under Order 37 Rule 7
The omission was fatal and not a mere technicality; the suit was struck out
Order 37 Rule 7 mandatorily requires a certified extract of title to be annexed to the supporting affidavit. The Plaintiffs attached only a sale agreement and an official search, which was over 10 years old. The register and a search are distinct documents; the register confirms the defendant is the registered proprietor, a jurisdictional prerequisite. The court also noted a previous suit by the same Plaintiffs dismissed on the same ground.
Legal principles established
#- A preliminary objection can only be raised on a pure point of law
- The requirement to annex a certified extract of title to an adverse possession Originating Summons is mandatory and goes to the jurisdiction of the court
- A search and a register of title are distinct documents and cannot be used interchangeably
Court orders
#- 1.Preliminary objection allowed
- 2.The Plaintiffs' suit (Originating Summons) struck out
- 3.Costs of the suit awarded to the 1st Defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land; suit by Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Butu & 29 others v Delamere Estates Limited & another (Enviromental and Land Originating Summons E005 of 2025) (Environment and Land) [2025] KEELC 8072 (KLR)[2025] KEELC 8072 (KLR)20 Nov 2025
- Butu & 29 others v Delamere Estates Limited & another (Enviromental and Land Originating Summons E005 of 2025) (Environment and Land) [2025] KEELC 8072 (KLR)[2025] KEELC 8072 (KLR)20 Nov 2025
Cite this brief
#Cite this brief
Caselaw, "Ndonye & 2 others v Land Registrar Machakos & another (Environment & Land Case E021 of 2021) [2022] KEELC 3506 (KLR)", Case Analysis (2022). Machakos ELC Originating Summons dated 26th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3506/eng@2022-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.