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ELCStruck OutMachakos ELC Originating Summons dated 26th August 2021· [2022] KEELC 3506 (KLR)

Ndonye & 2 others v Land Registrar Machakos & another (Environment & Land Case E021 of 2021) [2022] KEELC 3506 (KLR)

Environment and Land Court
27 July 2022
2,070 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 1st Defendant filed a preliminary objection dated 17th September 2021 seeking dismissal of the Plaintiffs' Originating Summons dated 26th August 2021, by which the Plaintiffs claimed title to Land Parcel No. Machakos/Nguluni/2XXX by adverse possession, alleging over 37 years of open and continuous occupation, and sought a permanent injunction. The 1st Defendant objected on grounds of breach of Order 37 Rule 7 of the Civil Procedure Rules, Sections 7, 13 and 26(c) of the Limitation of Actions Act, and the maxim nec vi, nec clam, nec precario. He also alleged a registration mistake at the Lands Office and that the 2nd Plaintiff, having taken possession in 2012, had occupied for only 9 years. The court, applying Mukisa Biscuits Ltd vs West End Distribution, found the objection raised pure points of law and therefore valid. On merit, the court held that the 2nd Plaintiff's 9 years of occupation fell short of the 12-year threshold under Kasuve vs Mwaani Investments, and struck out his claim. The question whether the 1st Plaintiff remained in possession after 2012 was held to be a factual dispute unsuitable for summary determination, so that ground failed. However, the Plaintiffs had annexed neither a certified extract of title nor a current official search (the search being dated 3rd October 2011). The court held the requirement mandatory and jurisdictional, noting a prior suit by the same Plaintiffs (Kangundo ELC No. E001 of 2020) dismissed on a similar ground. The preliminary objection was allowed, the Plaintiffs' suit struck out, with costs to the 1st Defendant.

Key legal issues

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01

Validity of the preliminary objection as a pure point of law

Holding

The objection was valid as all its grounds were points of law

Reasoning

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.

p. 3
02

Whether the 2nd Plaintiff's adverse possession claim could be determined on the objection

Holding

The 12-year period had not run; the 2nd Plaintiff's suit was struck out

Reasoning

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.

p. 3
03

Whether the 1st Plaintiff's possession ceased in 2012

Holding

This was a disputed question of fact unsuitable for determination on a preliminary objection

Reasoning

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.

p. 2
04

Non-attachment of a certified extract of title under Order 37 Rule 7

Holding

The omission was fatal and not a mere technicality; the suit was struck out

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Preliminary objection allowed
  2. 2.The Plaintiffs' suit (Originating Summons) struck out
  3. 3.Costs of the suit awarded to the 1st Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 26(c)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38
  • Law of Contract ActSection 3(3)

Cases cited (12)

  • Teresa Wachuka Gachira vs. Joseph Mwangi Gachira
    [2009] eKLR
  • Elijah Gachugi Ndegwa vs. County Lands Registrar Lamu & 4 Others
    [2020] eKLR
  • Ephantus Mihigo Ngotho vs. John Kongwalei Sawe & Another
    [2018] eKLR
  • Munyaka Kuna Company Limited vs. Bernado Vicezo De Masi (The Administrator of the Estate of Domenico De Masi (deceased)
    [2018] eKLR
  • Wambugu vs. Njuguna
    [1983] KLR 173
  • Mtana Lewa vs. Kahindi Ngala Mwangadi
    [2015] eKLR
  • Anchor Limited vs. Sports Kenya
    [2017] eKLR
  • D. T. Dobie Company (Kenya) Ltd vs. Muchina
    [1982] KLR 1
  • Coast Projects Ltd vs. M. R. Shah Construction (K) Ltd
    [2004] 2 KLR 119
  • Mukisa Biscuits Ltd vs West End Distribution Co. Ltd
    [1969] EA 696
  • Kasuve vs. Mwaani Investments Ltd & 4 Others
    1 KLR 184
  • Peter Kiamba Ndonye and Simon Kimeu Kyuu vs. Josephat Kyalo Sammy and the Land Registrar Machakos
    Kangundo ELC No. E001 of 2020
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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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.