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ELCDismissedOriginating Summons dated 5th July, 2021· [2022] KEELC 3835 (KLR)

Samuel Ole Maseri Kiondo v Waishoshi & 3 others (Environment and Land Case Civil Suit E008 of 2021) [2022] KEELC 3835 (KLR)

Environment and Land Court
21 July 2022
CMC. G. Mbogo
2,120 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an adverse possession claim because the claimant couldn't prove exactly when, and how openly, he occupied the land.

What this practically means

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Executive summary

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The plaintiff brought an originating summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act seeking a declaration that he had been in adverse possession of land parcel Cis-Mara/Kipise/776, an order that he be registered as proprietor in place of the defendants, and an injunction restraining interference with his occupation. He claimed his father acquired the land from Kipise Group Ranch and that he had occupied it peacefully for many decades, raising his children and building permanent structures. The 1st defendant filed a preliminary objection and replying affidavit asserting she had been in occupation since 1972, entered a sale agreement in 1990, and obtained a certificate of title on 17th May, 2016, so no adverse claim could accrue against a title only about five years old. She contended the suit offended Section 7 of the Limitation of Actions Act and Order 37 Rule 7(2) for want of an extract of title. The 2nd to 4th defendants relied on established adverse possession authorities. The court set out the statutory framework in Sections 7, 13, 37 and 38 of the Limitation of Actions Act and held that the plaintiff failed to plead or prove when his occupation began, its openness, continuity and lack of interruption, and gave no proof of his claimed structures. The court dismissed the originating summons as hopeless and defective, upheld the preliminary objection, and awarded costs to the defendants.

Key legal issues

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01

Whether the plaintiff proved adverse possession of Cis-Mara/Kipise/776

Holding

The plaintiff failed; he did not state when his occupation began, nor that it was open, continuous and uninterrupted, and gave no proof of permanent structures

Reasoning

The court outlined the elements of adverse possession under Sections 7, 13, 37 and 38 of the Limitation of Actions Act: exclusive, open, notorious and hostile possession for at least 12 years. The plaintiff only asserted occupation 'for many decades' without stating when it began, whether it was continuous and uninterrupted, and without proof of the permanent structures he claimed to have built. The court doubted his genuineness and found the claim failed.

p. 4
02

Whether the originating summons complied with Order 37 Rule 7(2) of the Civil Procedure Rules

Holding

It did not; the summons was held defective and hopeless, and the preliminary objection was upheld

Reasoning

The 1st defendant objected that the suit offended Section 7 of the Limitation of Actions Act and Order 37 Rule 7(2) for failing to attach an extract of the title. The court found the originating summons defective and dismissed it, upholding the preliminary objection. The plaintiff's title had only issued on 17th May, 2016, and counsel was faulted for poor grasp of adverse possession law.

p. 5

Legal principles established

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  • To establish adverse possession a party must demonstrate exclusive possession, adverse rights of the title owner and intention to possess for a period of 12 years
  • Possession must be adequate in continuity, publicity and extent, and neither by force, stealth nor under licence of the owner

Court orders

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  1. 1.The originating summons dated 5th July, 2021 is dismissed with costs to the defendants
  2. 2.The notice of preliminary objection dated 5th February, 2022 is upheld

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSections 37 and 38
  • Civil Procedure RulesOrder 37 Rule 7 and Order 37 Rule 7(2)

Cases cited (4)

  • Mbira versus Gachuhi
    [2002] 1 EA
  • Wambugu versus Njuguna
    (1983) KLR 173
  • Mtana Lewa versus Kahindi Ngala Mwangandi
    (2005) eKLR
  • Gabriel Mbui versus Mukindia Maranya
    [1993] eKLR
Jurisdiction invoked
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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Cite this brief

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Cite this brief

Caselaw, "Samuel Ole Maseri Kiondo v Waishoshi & 3 others (Environment and Land Case Civil Suit E008 of 2021) [2022] KEELC 3835 (KLR)", Case Analysis (2022). Originating Summons dated 5th July, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3835/eng@2022-07-21

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