Assemblies of Christ Evangelical Holiness Church-Kenya (Suing through its registered trustees Bishop Francis Ranogwa & Bishop John Sereka) v Machoka & another (Environment and Land Case Civil Suit 16 of 2021) [2023] KEELC 752 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's attempt to strike out an adverse possession claim, confirming such claims must proceed by originating summons.
What this practically means
#Executive summary
#Key legal issues
#Whether the ground that the suit does not lie against the 1st defendant nor accrued against the 2nd defendant under the Limitation of Actions Act is a pure point of law
The ground was not a pure point of law; whether a cause of action lies or accrued against the defendants depends on facts to be determined at hearing.
The court found the parties' conflicting positions on whether the cause of action lay against the 1st defendant or accrued against the 2nd defendant required hearing of evidence. Inviting viva voce evidence to establish such facts takes the ground outside the Mukisa Biscuit threshold for a preliminary objection.
Whether contentious factual issues rendered a plaint rather than an originating summons the proper mode of commencing the suit
The court rejected this ground; adverse possession claims are prescribed by Order 37 rule 7 to be brought by originating summons, so the orders sought need not be sought by plaint.
The relief sought was a declaration of adverse possession and registration of the plaintiff as proprietor. Order 37 rule 7 expressly requires an application under section 38 of the Limitation of Actions Act to be made by originating summons. The court therefore saw no basis for the contention that only a plaint would suffice.
Legal principles established
#- A preliminary objection must be a pure point of law, not dependent on disputed facts or evidence.
- A claim for a declaration of adverse possession is properly instituted by originating summons under Order 37 rule 7 of the Civil Procedure Rules.
Court orders
#- 1.The 1st defendant's preliminary objection dated September 9, 2022 is dismissed
- 2.Costs of the preliminary objection awarded to the plaintiff
- Jurisdiction invoked
- Original jurisdiction under the Limitation of Actions Act (sections 37 and 38) and Order 37 Rule 7 of the Civil Procedure Rules; the ruling determines a preliminary objection in a first-instance adverse possession suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Assemblies of Christ Evangelical Holiness Church-Kenya (Suing through its registered trustees Bishop Francis Ranogwa & Bishop John Sereka) v Machoka & another (Environment and Land Case Civil Suit 16 of 2021) [2023] KEELC 752 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/752/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.