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ELCAllowedEnvironment & Land Case 117 of 2018· [2024] KEELC 514 (KLR)

Joseph v Kisau (Environment & Land Case 117 of 2018) [2024] KEELC 514 (KLR)

Environment and Land Court
31 January 2024
TMT. Murigi
1,348 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a land owner to convert an adverse possession claim into a full lawsuit because the dispute involved serious contested issues needing oral evidence.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 9th March 2023 brought under Order 37 Rule 19 of the Civil Procedure Rules seeking conversion of an Originating Summons into a Plaint so that the parties may plead their full claims. The underlying dispute concerns Parcel No. Nzaui/Kikumini/786, in which Rael Mumbua Joseph, by Originating Summons, seeks a declaration that she has acquired the freehold interest by adverse possession and registration as proprietor. Jeremiah Ngunzi Kisau, the Respondent to the Originating Summons, moved the court seeking conversion, arguing that his replying affidavit raised contested issues and distinct claims for eviction, injunction, trespass and demolition which could not be raised as a defence and counterclaim within the Originating Summons procedure. The opposing party argued the application was incompetent for failure to specify the issues necessitating conversion and for failure to annex a draft pleading. The court framed a single issue: whether the Originating Summons ought to be converted into a Plaint. Relying on Order 37 Rule 19 and the Court of Appeal's decision in Mukesh Manchand Shah & another v Priyat Shah & another [2015] eKLR, the court held that the contentious allegations and multiple distinct claims require oral evidence and full presentation through pleadings, that conversion would cause no prejudice, and allowed the application as prayed with costs in the cause.

Key legal issues

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01

Whether the Originating Summons should be converted into a Plaint under Order 37 Rule 19

Holding

The application is merited; the Originating Summons is to be converted into a Plaint because the allegations are contested, distinct counterclaims exist, and oral evidence will be necessary.

Reasoning

The court found the Applicant's replying affidavit raised clearly contested allegations denying any prescriptive rights and asserting claims for injunction, trespass, eviction and demolition. Such contentious issues require oral evidence and full presentation of claims via a Plaint and counterclaim. Conversion causes no prejudice since no claim is locked out of the seat of justice, and Order 37 Rule 19 expressly empowers the court to convert.

p. 3

Legal principles established

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  • Order 37 Rule 19 empowers the court, at any stage of proceedings, to order that an originating summons be continued as if the cause had been begun by plaint.
  • Conversion of an originating summons into a plaint is appropriate where the matter involves serious, contested or complex questions of law and fact requiring full ventilation, including oral evidence.

Court orders

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  1. 1.The application dated 9th March 2023 is allowed as prayed
  2. 2.The proceedings to be continued as if the cause of action had been begun by filing a Plaint, with the Originating Summons converted into a Plaint
  3. 3.The Applicant to the Originating Summons, Rael Mumbua Joseph, to be at liberty to amend the Originating Summons into a Plaint
  4. 4.The Respondent to the Originating Summons, Jeremiah Ngunzi Kisau, to be at liberty to file a defence and counterclaim as may be necessary
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 19
  • Civil Procedure RulesOrder 37 rules 18 & 19
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Emily Chepkor Chepkwony v Paul Arap Chandoek
    [2021] eKLR
  • Mukesh Manchand Shah & another v Priyat Shah & another
    [2015] eKLR
Jurisdiction invoked
Order 37 Rule 19 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joseph v Kisau (Environment & Land Case 117 of 2018) [2024] KEELC 514 (KLR)", Case Analysis (2024). Environment & Land Case 117 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/514/eng@2024-01-31

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