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ELCAllowedELC Originating Summons dated 12th November 2019 (Kitale)· [2024] KEELC 1384 (KLR)

Birunda Farm v Sawenja & 35 others (Environment & Land Case 71 of 2019) [2024] KEELC 1384 (KLR)

Environment and Land Court
12 March 2024
4,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale struck out an adverse possession claim because the company suing did not legally exist and the suit lacked required title documents.

What this practically means

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Executive summary

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The 2nd Defendant moved the court by Notice of Motion dated 12/06/2023 under Order 2 Rule 15 and Order 50 Rule 1 of the Civil Procedure Rules, 2010 seeking striking out of the Plaintiff's Originating Summons dated 12/11/2019, which claimed adverse possession over parcels of Birunda Farm whose titles were issued in 2017. The Applicant argued the OS was scandalous, frivolous and vexatious, premature (12 years not elapsed since 2017 titles), defective for want of annexed extracts of title under Order 37 Rule 7, and brought by a non-existent entity without locus standi or a company resolution. The Plaintiff, through a Replying Affidavit sworn by its Chairman Samwel Maikuva, opposed, asserting the company's existence, members' occupation for over 30 years, and fraud in the 2017 titling, relying on Francis Gicahru Kariri v. Peter Njoroge Mairu. The court framed five issues and, applying Section 107 of the Evidence Act, examined the Plaintiff's own documents and found inconsistent hand-made stamps that could not equate to a company seal, holding the Plaintiff does not exist in law and cannot sustain a suit. It further found the verifying affidavit defective under Order 4 Rule 1(4) for want of the company seal. On prematurity, applying Registered Trustee Catholic Diocese of Murang'a v Micere Njau, it held that adverse possession runs with the land notwithstanding change of ownership, so the 2017 titles did not of themselves defeat the claim. However, since no certified extracts of title were annexed as Order 37 Rule 7 requires, the suit was incompetent. The application dated 12/06/2023 was allowed, the OS struck out, no costs awarded on the application, and each party to bear own costs.

Key legal issues

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01

Whether the Plaintiff exists in law and has locus standi

Holding

The court held that the Plaintiff does not exist in law and cannot sustain a suit; the documents relied on bore inconsistent hand-made stamps which cannot equate to a company seal

Reasoning

The Applicant bore the burden under Section 107 of the Evidence Act to prove non-existence and did not discharge it, but the Plaintiff's own documents (notice and minutes bearing two different hand-made stamps reading 'Birunda Farm Co. Ltd' and 'Birunda Farm') led to the inevitable conclusion that the Plaintiff was not the duly incorporated limited liability company. Hand-made stamps cannot be equated to a company seal as contemplated by Order 1 Rule 1(4).

p. 5
02

Whether the verifying affidavit complied with Order 4 Rule 1(4)

Holding

The verifying affidavit was defective, being a bare signature without the official seal of the company, hence the OS was not accompanied by a valid verifying affidavit

Reasoning

Order 4 Rule 1(4) requires that where the plaintiff is a corporation the verifying affidavit be sworn by an officer duly authorized under the seal of the company. The affidavit of Samwel Maikuva Mikisi bore only a signature that was commissioned, without the official seal, and so did not accord with the law.

p. 5
03

Whether the claim for adverse possession was premature given titles issued in 2017

Holding

Issuance of titles in 2017 does not of itself defeat an adverse possession claim; limitation runs with possession regardless of change of ownership

Reasoning

Section 7 of the Limitation of Actions Act is a defence for a landowner seeking to recover land, not a basis for the adverse possessor, who moves under Section 38. Adverse possession runs with physical possession, so new titles issued in 2017 did not extinguish an accruing claim; prematurity would depend on evidence of prior ownership and possession.

p. 6
04

Whether the suit was competent for want of an annexed extract of title under Order 37 Rule 7

Holding

The suit was incompetent as no certified extracts of title were annexed to the supporting affidavit; a list of owners could not substitute, warranting striking out

Reasoning

Order 37 Rule 7 requires an adverse possession OS to be supported by an affidavit annexing a certified extract of title to prove who the registered owner is. The Plaintiff annexed only a list of owners and plot numbers (SM 2). Without the extract, adverse possession cannot be established against the true owner, and no other document can substitute for the extract of title.

p. 7

Legal principles established

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  • A claim for adverse possession runs with the land and is not defeated by a mere change of ownership or issuance of new titles
  • An originating summons for adverse possession must be supported by an affidavit to which a certified extract of title is annexed; a search certificate or list of owners cannot substitute
  • Where the plaintiff is a corporation, the verifying affidavit must be sworn by an officer duly authorized under the official seal of the company

Court orders

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  1. 1.The Application dated 12/06/2023 is allowed
  2. 2.The Originating Summons dated 12/11/2019 and filed on 13/12/2019 is struck out
  3. 3.No costs awarded on the application as there was no prayer for costs
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Civil Procedure Rules, 2010Order 50 Rule 1
  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Civil Procedure Rules, 2010Order 4 Rule 1(4)
  • Civil Procedure Rules, 2010Order 1 Rule 1(4)
  • Civil Procedure ActSections 1A, 3, 3A and 63(e)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38
  • Evidence ActSection 107
  • Land Registration ActSection 26(1)

Cases cited (2)

  • Francis Gicahru Kariri v. Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Registered Trustee Catholic Diocese of Murang'a V Micere Njau & 3 Others
    [2022] eKLR
Jurisdiction invoked
Order 2 Rule 15 and Order 50 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act

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, "Birunda Farm v Sawenja & 35 others (Environment & Land Case 71 of 2019) [2024] KEELC 1384 (KLR)", Case Analysis (2024). ELC Originating Summons dated 12th November 2019 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1384/eng@2024-03-12

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