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ELCStruck OutNot stated in judgment (Originating Summons dated 13th October 2022)· [2024] KEELC 4094 (KLR)

Kakindu v Abdulla (Land Case E009 of 2022) [2024] KEELC 4094 (KLR)

Environment and Land Court
21 May 2024
ADA.E. Dena
2,177 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out an adverse possession suit because the plaintiff couldn't produce a registered title document as the rules require.

What this practically means

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Executive summary

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The plaintiff, Hussein Njeru Kakindu, sued by originating summons under section 38(2) of the Limitation of Actions Act claiming Plot No. Kwale Township/13 by adverse possession, naming Farida Harun Abdulla as defendant. The defendant applied by notice of motion dated 15th July 2023 under Order 2 Rule 15(1)(d) and sections 1A, 1B and 3A of the Civil Procedure Act to strike out the summons as an abuse of process, contending that the suit property belongs to the County Government of Kwale, that no title had issued to her that could be extinguished by limitation, and that the suit offended Order 37 Rule 7(2) for want of a certified extract of title. The plaintiff opposed, relying on Article 40 of the Constitution, arguing that an allotment letter suffices as proof of ownership, that he had paid rates and developed the land, and that any land, including county land, is amenable to adverse possession upon proof of 12 years' uninterrupted occupation. The court applied D.T. Dobie v Muchina and Crescent Construction v Delphis Bank on the cautious exercise of the striking-out discretion. It held that the purpose of Order 37 Rule 7(2) is to prove registration or lease in a third party's name; the plaintiff annexed only a rates demand notice addressed to himself, and even an allotment letter would not suffice, the Supreme Court in Torino Enterprises v Attorney General having affirmed that an allotment letter is not title until perfected by registration. The defect was incurable by amendment since no title existed in the defendant's name. The application was allowed, the suit struck out, with no orders as to costs. Delivered at Kwale on 21st May 2024 by A.E. Dena, J.

Key legal issues

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01

Compliance with Order 37 Rule 7(2) in adverse possession suits

Holding

The suit was defective for want of an annexed certified extract of title in the name of the registered owner; a rates demand notice cannot substitute for a title

Reasoning

The court held that the purpose of Order 37 Rule 7(2) is to prove that the property is registered or leased in the name of a third party. The plaintiff attached only a rates demand notice addressed to himself, not the allotment letter. Even if the allotment letter had been attached, per the Supreme Court in Torino Enterprises, an allotment letter is not title until perfected by registration. Since no title exists in the defendant's name, the defect is incurable by amendment and the suit cannot be salvaged.

p. 4
02

The court's discretion on striking out pleadings

Holding

The power to strike out is discretionary and must be exercised with utmost care, but a suit that is plainly a non-starter and incurable by amendment may be struck out

Reasoning

Relying on D.T. Dobie & Co. Ltd v Muchina and Crescent Construction Co Ltd v Delphis Bank Ltd, the court acknowledged the principle that no suit should be summarily dismissed unless it is hopeless and beyond redemption by amendment, and that a litigant should not be driven from the seat of justice. However, it found the only cure — annexing a title in the defendant's name — was impossible since no title had been issued, leaving its hands tied.

p. 4

Legal principles established

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  • A letter of allotment is not a title until perfected by registration
  • A demand notice for rates is not a title document
  • An adverse possession suit must be supported by an affidavit annexing a certified extract of the title

Court orders

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  1. 1.The application dated 15th July 2023 is allowed
  2. 2.The Originating Summons (suit) is struck out
  3. 3.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Sections 37, 38, 41
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 2 Rule 15(1)(d); Order 37 Rule 7(1)-(3)
  • Constitution of KenyaArticle 40

Cases cited (6)

  • Ongwen & Another Vs. Keya & Another (2023) eKLR
    (2023) eKLR
  • Wreck Motors Enterprises Vs. Commissioner of Land and 4 others
    C.A No. 71 of 1977 (1997) eKLR
  • Mbira vs. Gachihi 2002 1 EALR 137
    2002 1 EALR 137
  • D.T. Dobie & Co. (K) Ltd Vs. Muchina (1982) eKLR
    (1982) eKLR
  • Crescent Construction Co Ltd Versus Delphis Bank Limited [2007] eKLR
    [2007] eKLR
  • Torino Enterprises Ltd Vs. Attorney General
    Petition 5(E006) of 2022 (2023) KESC 79 (KLR)
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22); Civil Procedure Act sections 1A, 1B, 3A; Order 2 Rule 15 and Order 37 Rule 7 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, "Kakindu v Abdulla (Land Case E009 of 2022) [2024] KEELC 4094 (KLR)", Case Analysis (2024). Not stated in judgment (Originating Summons dated 13th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4094/eng@2024-05-21

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