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ELCStruck OutOriginating Summons dated 16.11.2023 (Meru ELC)· [2024] KEELC 1531 (KLR)

Mbaabu v Mutunga & 4 others (Enviromental and Land Originating Summons E012 of 2023) [2024] KEELC 1531 (KLR)

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

The bottom line

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What this practically means

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Executive summary

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The plaintiff, Mutuma John Mbaabu, filed an originating summons under Order 37 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act seeking orders of adverse possession over parcel No. 6755 Karama Adjudication Section, including rectification of the register, substitution of his name for the defendants', and execution of transfer instruments. His supporting affidavit deposed to over 30 years' occupation but attached no title, search or extract of register. The defendants, who denied holding any interest in that parcel and identified their own parcels as Nos. 2057, 324, 8543, 7682 and 8074 Karama Adjudication Section, raised a preliminary objection dated 28.11.2023 that the suit was premature, defective and an abuse of process because the land is still under adjudication, no certified title was annexed, the verifying affidavit was defective and no consent was obtained. Justice C K Nzili upheld the objection, holding that adverse possession applies only to registered land, that time does not run during consolidation, demarcation and adjudication but only from the date of registration, and that Order 37 requires a title or extract to be attached. The plaintiff had not shown the land had become titled. The originating summons dated 16.11.2023 was struck out with costs to the defendants on 20 March 2024 at Meru.

Key legal issues

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01

Whether adverse possession may be claimed over unregistered land under adjudication

Holding

No. Section 38 of the Limitation of Actions Act applies only to registered land; time runs only from the date of registration, not during adjudication, demarcation or consolidation

Reasoning

Order 37 requires a title or extract of the registered land to be attached to the supporting affidavit. Section 38 refers to land registered under acts cited in Section 37. The plaintiff attached no title, search or records, and the defendants' 2017 confirmation letter shows the land is governed by Cap 284 and still under adjudication. The plaintiff filed no reply showing the adjudication had concluded and registration effected, so time could not have begun to run and there is no registered owner to sue.

p. 2
02

Nature and propriety of a preliminary objection

Holding

A preliminary objection is a pure point of law which, if argued, may dispose of the suit; the objection here was appropriately taken and upheld

Reasoning

The court applied the classic definition that a preliminary objection may be based on jurisdiction or a statute of limitation. The plaintiff failed to attach a certificate of title, official search or copy of records showing the known owner, and the land was under adjudication. The objection therefore disposed of the suit on a pure point of law without the need for trial.

p. 2

Legal principles established

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  • A party claiming adverse possession must attach to the supporting affidavit a copy of the title or extract of the registered land in issue; adverse possession cannot lie over land still under adjudication, demarcation or consolidation until registration

Court orders

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  1. 1.The preliminary objection dated 28.11.2023 is upheld
  2. 2.The originating summons dated 16.11.2023 is struck out
  3. 3.Costs to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 37
  • Limitation of Actions Act (Cap 22)Sections 37 and 38
  • Land Adjudication Act (Cap 284)Section 28
  • Land Actnull
  • Land Registration Actnull

Cases cited (5)

  • Samuel Kipng'eno Koech vs Agnes Wambui Gitonga
    (2016) eKLR
  • Koech Kangogo v Chebii Yego
    [2018] eKLR
  • Solomon Meme Muthamia v Ntari Kabutura & Land Adjudication Officer Meru
    [2001] eKLR
  • Wambugu vs Njuguna
    (1983) KLR 172
  • Adonija Onyango Oluoch & others vs Jackson Leela Musekenya
    (2018) eKLR
Jurisdiction invoked
Article 162(2)(b) ELC jurisdiction over land; suit under Order 37 CPR and Section 38 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, "Mbaabu v Mutunga & 4 others (Enviromental and Land Originating Summons E012 of 2023) [2024] KEELC 1531 (KLR)", Case Analysis (2024). Originating Summons dated 16.11.2023 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1531/eng@2024-03-20

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