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ELCDismissedOriginating Summons dated 23rd October, 2018· [2024] KEELC 3392 (KLR)

Mwendo & 4 others v Vekaria; Victoria Commercial Bank Limited (Interested Party) (Environment & Land Case 459 of 2018) [2024] KEELC 3392 (KLR)

Environment and Land Court
24 April 2024
5,702 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Nairobi court dismissed over 90 families' claim to own land through adverse possession and ordered them to vacate within 120 days.

What this practically means

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Executive summary

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By an Originating Summons dated 23rd October, 2018 filed under Sections 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, over 90 families represented by five Plaintiffs sought declarations of title by adverse possession over L.R Nos 209/10307 and 209/10308 in Nairobi, a permanent injunction against eviction, and extinguishment of the Interested Party's chargee interest. The Defendant, the registered proprietor since 2006, countered that the land was vacant when he purchased it from Alpha Development Company Limited, that the Plaintiffs entered as internally displaced persons during the 2007/2008 post-election violence, and cross-sought eviction and demolition. The court found the summons not defective, holding that a single affidavit expressly sworn in support of both the motion and the summons satisfied Order 37 Rule 7(2). On the merits, the court preferred the Defendant's evidence that the land was vacant in mid-2006 and found the Plaintiffs entered in 2007; twelve years would only elapse in 2019, so their title was not extinguished when they filed suit in 2018. The Plaintiffs' adverse possession claim failed, their own witness admitting his house was absent from the photographs relied on. Affirming the Defendant's indefeasible title, the court found eviction and demolition merited, but refused general damages for trespass as they were not pleaded. The Originating Summons was dismissed with the Plaintiffs given 120 days to vacate and demolish, failing which eviction with police assistance would follow, and each party bearing its own costs.

Key legal issues

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01

Whether the Originating Summons was fatally defective for want of a supporting affidavit

Holding

Not defective - a single affidavit sworn in support of both the contemporaneous Notice of Motion and the Originating Summons satisfied Order 37 Rule 7(2)

Reasoning

Order 37 Rule 7(2) mandates an affidavit in support, a mandatory requirement. However, the Summons was filed with a Notice of Motion supported by an affidavit expressly stating it was sworn in support of both pleadings. Common practice permits one affidavit where the same facts serve both interlocutory and substantive reliefs, so the objection failed.

02

Whether the Plaintiffs proved adverse possession of the suit properties

Holding

No - the Plaintiffs failed to prove 12 years of open, continuous, undisturbed possession; the court found they entered in 2007 during the post-election violence

Reasoning

Oral testimony placing entry in the 1990s was unsupported and conflicting; the Defendant proved on a balance of probabilities that the land was vacant when he purchased in mid-2006. Entry having occurred in 2007, twelve years would elapse only in 2019, after the 2018 suit, so title was not extinguished.

p. 10
03

Whether eviction and demolition orders should issue

Holding

Yes - the Defendant's registered title was affirmed and the Plaintiffs, admittedly in occupation with constructed structures, were ordered to vacate within 120 days

Reasoning

The Defendant is the absolute and indefeasible registered proprietor under Sections 23, 24 and 26 of the registration statutes; no challenge under Section 26 was substantiated. A proprietor is entitled to peaceful and quiet possession, and occupation being admitted, eviction and demolition prayers were merited.

p. 11

Legal principles established

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  • An action to recover land may not be brought after twelve years from when the right of action accrued, and the title of a proprietor is extinguished at the expiration of that period in favour of a party in adverse possession for a minimum of 12 years
  • In a claim for adverse possession the burden of proof is on the person setting up the claim, on a balance of probability
  • A claim may properly be raised in a Replying Affidavit under Order 37, in the nature of a defence and counterclaim
  • A registered proprietor's title is absolute and indefeasible and may be challenged only on the grounds in Section 26(1) of the Land Registration Act

Court orders

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  1. 1.The Plaintiffs' Originating Summons dated the 23rd October, 2018 be and is hereby dismissed.
  2. 2.The Plaintiffs are given 120 days (4 months) from the date of this Judgement to vacate from the suit properties and demolish the structures thereon.
  3. 3.If the Plaintiffs do not vacate the suit property within 120 days, the Defendant, with the assistance of the police, to evict the Plaintiffs.
  4. 4.Each party to bear his/ its own costs.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSections 13, 17, 37, 38
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 37 Rule 7
  • Civil Procedure RulesOrders 37 and 38
  • Land Registration ActSections 24, 25, 26(1)
  • Registration of Titles Act (repealed)Section 23(1)

Cases cited (8)

  • Wambugu vs Njuguna
    [1983] KLR 172
  • Mtana Lewa vs Kahindi Ngala Mwangandi
    [2015] eKLR
  • Samwel Kihamba vs Mary Mbaisi
    [2015] eKLR
  • Wachira Githinji & Another vs Kanothi Githinji
    [2014] eKLR
  • Richard Wefwafwa Songoi vs Ben Munyifa Songoi
    [2020] eKLR
  • Gabriel Mbui vs Mukindia Maranya
    [1993] eKLR
  • Wines & Spirits Kenya Limited & another vs George Mwachiru Mwango
    [2018] eKLR
  • Leigh v Jack
    (1879) 5 Ex D 264
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act, Cap 22; Order 37 Rule 7 of the Civil Procedure Rules; Section 3A of the Civil Procedure 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, "Mwendo & 4 others v Vekaria; Victoria Commercial Bank Limited (Interested Party) (Environment & Land Case 459 of 2018) [2024] KEELC 3392 (KLR)", Case Analysis (2024). Originating Summons dated 23rd October, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3392/eng@2024-04-24

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