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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Originating Summons founded on a non-existent title should be struck out
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
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.
Legal principles established
#- 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
#- 1.The application dated 19th May 2023 is allowed with costs to the Applicant
- 2.The Plaintiff's Originating Summons dated 18th November 2022 is struck out
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.