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ELCDismissed· [2024] KEELC 1728 (KLR)

Owino & 2 others (Suing as the Officials and Members of Yasego Society) v Meron Limited & another (Environment & Land Case E10 of 2024) [2024] KEELC 1728 (KLR)

Environment and Land Court
4 April 2024
7,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A landowner's attempt to kill an adverse possession claim failed because they never properly stated legal grounds for review, and missing title documents were deemed curable.

What this practically means

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Executive summary

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The 2nd Defendant in an adverse possession suit over L.R No. 28401 moved the court by Notice of Motion dated 28th February 2024 under Order 2 Rule 15, Order 40 Rule 7 and Order 45 Rule 1 of the Civil Procedure Rules, 2010, seeking review and setting aside of status quo orders issued on 14th February 2024 at the instance of the Plaintiffs, and striking out of the suit as abusive, frivolous and vexatious, and for non-compliance with Order 37 Rule 7(2) requiring annexure of a certified extract of title. The Applicant argued the status quo orders conflicted with injunction orders issued by Wabwotto, J in ELC No. E139 of 2023 (Langton Investment Ltd v Meron Ltd). The Plaintiffs countered that no ground for review was pleaded and that they were strangers to ELC No. E139 of 2023; the 1st Defendant relied on its replying affidavit without submissions. The court framed four issues and dismissed the application in its entirety. It held that review grounds under Order 45 Rule 1 and Section 80 of the Civil Procedure Act were neither pleaded nor proved; that the status quo orders did not conflict with the E139 orders since the Plaintiffs were not parties there; that multiple suits over one property by claimants with distinct causes of action are not abusive; that the court lacked jurisdiction on an interlocutory application to evaluate surveyor evidence on occupation; and that failure to annex a certified extract of title is a curable procedural lapse under Article 159(2)(d), following David Muturi Migwe and Moses Mwicigi. The application was dismissed with costs to the Plaintiffs and 1st Defendant.

Key legal issues

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01

Whether grounds for review under Order 45 Rule 1 were established

Holding

No ground for review was pleaded or proved; the application for review failed

Reasoning

The Applicant made only omnibus averments and did not distil any of the grounds in Order 45 Rule 1 - discovery of new and important matter, error apparent on the face of the record, or sufficient cause. The orders of 14th February 2024 were made on the facts of this suit and do not conflict with those in ELC No. E139 of 2023, in which the Plaintiffs were not parties and could not be held hostage.

p. 8
02

Whether the suit is an abuse of the due process of the court

Holding

It is not; the other suits cited relate to different claimants with distinct causes of action

Reasoning

Multiplicity of suits over one property is only abusive where actions are between the same parties on the same issues. The various suits identified did not concern the Plaintiffs, and no evidence showed the Plaintiffs authorised them. The Plaintiffs are exercising their right of access to justice under Article 50 in pursuing an adverse possession claim.

p. 9
03

Whether the suit is frivolous and vexatious

Holding

The court cannot so hold on an interlocutory application without a minute examination of evidence

Reasoning

The surveyor's evidence that the property is vacant is factual controversy requiring cross-examination at a plenary hearing. Striking out is only for plain and obvious cases; a plaintiff should not be driven from the judgment seat unless the case is unarguable. The court therefore declined to make precipitate findings on occupation.

p. 12
04

Whether failure to annex a certified extract of title invalidates the Originating Summons

Holding

No; it is a curable procedural lapse

Reasoning

Following David Muturi Migwe v Sally Jemeli Korir, failure to annex a certified extract of title is a procedural irregularity curable at any stage, and per Moses Mwicigi, Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities. The Plaintiffs may, subject to leave, avail the extract by supplementary affidavit before directions.

p. 14

Legal principles established

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  • A party seeking review must plead and strictly prove a ground under Order 45 Rule 1 and Section 80 of the Civil Procedure Act
  • One suit property may be the subject of several suits provided each claimant has a separate and distinct cause of action
  • On an interlocutory application the court cannot evaluate evidence and make final factual conclusions; that is for the trial court after a plenary hearing
  • Failure to annex a certified extract of title to an adverse possession Originating Summons is a curable procedural irregularity, not fatal to the suit

Court orders

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  1. 1.The Application dated 28th February 2024 is dismissed
  2. 2.Costs of the Application awarded to the Plaintiffs/Respondents and the 1st Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(b), (c) and (d)
  • Civil Procedure Rules, 2010Order 40 Rule 7
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 37 Rule 7(2)
  • Civil Procedure Rules, 2010Order 37 Rules 16 and 17
  • Civil Procedure ActSection 80
  • Evidence ActSections 107, 108 and 109
  • Constitution of Kenya, 2010Articles 10(2), 48, 50 and 159(2)(d)

Cases cited (19)

  • Stephen Gathua Kimani versus Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2016] eKLR
  • Stephen Gathua Kimani versus Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2019] eKLR
  • Satya Bhama Gandhi versus Director of Public Prosecutions & 3 others
    [2018] eKLR
  • MUCHANGA INVESTMENTS LTD versus SAFARIS UNLIMITED (AFRICA) LTD & 2 others
    [2009] eKLR
  • Industrial and Commercial Development Corporation versus Daber Enterprises Limited
    [2000] eKLR
  • D.T. Dobie & Company (Kenya) Limited versus Joseph Mbaria Muchina & another
    [1980] eKLR
  • George Kamau Machora vs Mary Gathoni Kamau
    [2014] eKLR
  • Simon/Symon Gatutu & 587 Others vs East African Portland Cement
    [2011] eKLR
  • Johnson Kinywa vs Simon Gitura Rumuri
    [2011] eKLR
  • John Wambura & Another vs Anakletus/Ankletus Wambura
    [2017] eKLR
  • Crescent Construction Company Ltd vs Delphis Bank Ltd
    [2007] eKLR
  • Peter Whitton and Kathrine S. B Whitton vs Kenya Educational Trust Ltd
    Nakuru Civil Case No 56 and 57 of 2005 [UR]
  • Benjoh Amalgamated & Another vs Kenya Commercial Bank Ltd
    [2014] eKLR
  • Bethwel Omondi Okal vs Board of Trustees Teleposta Pension & 2 Others
    [2012] eKLR
  • Ferdinant Ndungu Waititu & 4 Others vs Attorney General & 11 Others
    (2016) eKLR
  • Re- Estate of Kimelo Olekuyoni [deceased]
    [2021] eKLR
  • David Muturi Migwe vs Sally Jemeli Korir & Another
    Civil Appeal No. 47 of 2015 [Unreported]
  • Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others
    [2016] eKLR
  • Langton Investment Ltd vs Meron Ltd, Chief Land Registrar and Director Land Administration
    ELC No. E139 of 2023
Jurisdiction invoked
Order 2 Rule 15(1)(b), (c) and (d), Order 40 Rule 7 and Order 45 Rule 1 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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Cite this brief

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Cite this brief

Caselaw, "Owino & 2 others (Suing as the Officials and Members of Yasego Society) v Meron Limited & another (Environment & Land Case E10 of 2024) [2024] KEELC 1728 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1728/eng@2024-04-04

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