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ELCPartially AllowedNotice of Motion dated 19th May 2023 in Originating Summons dated 18th November 2022· [2024] KEELC 6155 (KLR)

Muveu v Ndolo (Sued as the Beneficiary of the Estate of the Late General Joseph Musyimi Ndolo) (Enviromental and Land Originating Summons 45 of 2022) [2024] KEELC 6155 (KLR)

Environment and Land Court
25 September 2024
2,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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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 land title the claimant sued over no longer existed after subdivision.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Hon. T. Murigi, J) determined a Notice of Motion dated 19th May 2023 by the Defendant seeking to strike out the Plaintiff's Originating Summons dated 18th November 2022, which sought registration as proprietor of 2.1 acres within L.R. No. 1757/6 by adverse possession, a permanent injunction, excision orders and damages for trespass. The Defendant, the registered proprietor of L.R. No. 1757/19, argued that the claim was incompetent because the title pleaded did not exist, contrary to Order 37 Rule 7(2) of the Civil Procedure Rules. The Plaintiff countered that the Defendant maliciously subdivided the original title L.R. No. 1757/6 in 2019, creating L.R. No. 1757/19 after judgment had been entered against her in related suits ELC Nos. 233-241 of 2017 on 18th March 2018, and that the defect was curable by amendment. The court held that a claim for adverse possession can only be founded on an existing title, that although the court has discretion to allow amendment at any stage before judgment, pleadings belong to the parties and the Plaintiff had made no application to amend to reflect the correct title number. In the absence of an existing title, the suit offended Order 37 Rule 2 of the Civil Procedure Rules. The application was allowed with costs to the Applicant and the Originating Summons was struck out.

Key legal issues

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01

Whether the Originating Summons founded on a non-existent title should be struck out

Holding

The suit was struck out because the claim for adverse possession was founded on a title that no longer existed following subdivision, and the Plaintiff had not applied to amend

Reasoning

Order 37 Rule 7(2) requires the supporting affidavit to annex a certified extract of title to the land, meaning adverse possession can only be claimed against an existing title. The Defendant subdivided L.R. No. 1757/6 in 2019, creating L.R. No. 1757/19. Although courts can allow amendment of pleadings at any stage before judgment, pleadings belong to the parties; the Plaintiff never moved to amend the Originating Summons to reflect the new title. Without amendment, the suit claimed adverse possession over a non-existent title and offended Order 37 Rule 2.

p. 6

Legal principles established

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  • A claim for adverse possession can only be founded on an existing title
  • The power to strike out pleadings is discretionary and must be exercised sparingly and only in the clearest of cases
  • A party seeking to substitute a title by amendment must actually make the application; pleadings belong to the parties

Court orders

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  1. 1.The application dated 19th May 2023 is allowed with costs to the Applicant
  2. 2.The Plaintiff's Originating Summons dated 18th November 2022 is struck out

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(a)
  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 2 Rule 12; Order 2 Rule 15; Order 37 Rule 7(2); Order 37 Rule 2

Cases cited (8)

  • Stephen Mwandoro & 56 Others v Alhad Mohammed Hatimy
    (2020) eKLR
  • Safari Chengo Nyambu & Others v Alpesh Kanakihn Khimji
    (2022) eKLR
  • Party of Independent Candidate of Kenya v Mutula Kilonzo & 2 others
    (2013) eKLR
  • Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri
    (2014) eKLR
  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others
    (2022) eKLR
  • John Nyagaka Osoro v Reynold Karisa Charo & 5 others
    (2021) eKLR
  • Rufus Njuguna Miringu & another v Martha Murithi & 2 others
    (2012) eKLR
  • Crescent Construction Co Ltd v Delphis Bank Limited
    (2007) eKLR
Jurisdiction invoked
Article 159(2)(a) of the Constitution of Kenya 2010; Sections 1A, 1B & 3A of the Civil Procedure Act; Order 2 Rule 12 and Order 37 Rule 7 of the Civil Procedure Rules

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, "Muveu v Ndolo (Sued as the Beneficiary of the Estate of the Late General Joseph Musyimi Ndolo) (Enviromental and Land Originating Summons 45 of 2022) [2024] KEELC 6155 (KLR)", Case Analysis (2024). Notice of Motion dated 19th May 2023 in Originating Summons dated 18th November 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6155/eng@2024-09-25

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