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ELCOtherEnvironmental and Land Originating Summons E026 of 2021· [2024] KEELC 6317 (KLR)
Mukuna & another v Waweru & another (Enviromental and Land Originating Summons E026 of 2021) [2024] KEELC 6317 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#An adverse possession claim stalled in Thika because the plaintiffs used an outdated land search and a tiny newspaper notice - proof that details matter.
What this practically means
#Executive summary
#The applicants, Peter Mukuna and Irene Wambui, sued Anne Njoki Waweru and Mbo-I Kamiti Farmers Company Ltd by originating summons dated 2/9/2021 seeking a declaration that the 1st respondent's title to land parcel Ruiru/Kiu Block 4/2030 had been extinguished by adverse possession, an order that the parcel be registered in their names, execution of transfer documents, and costs. After substituted service by newspaper advertisement on the 1st defendant and personal service on the 2nd defendant, the Deputy Registrar certified the suit ready for hearing, and it proceeded as an undefended cause. In preparing judgment, Eboso J identified two defects: the plaintiffs had exhibited only an old official search from August 2021 and not a certified copy of the current land register, so the current registered proprietor of the suit land was unknown to the court; and the notice used for substituted service was an obscure classified-column advertisement, on the basis of which the Deputy Registrar had erroneously certified the matter. The court accordingly directed the plaintiffs to file a supplementary affidavit tendering a certified copy of the current land register and official search, ordered fresh service by prominent notice of not less than 4x5 inches with font size 12 in the Daily Nation or Standard Newspapers, vacated the reserved judgment date, and fixed mention on 5/11/2024 for further directions. This is a procedural directions order, not a final determination of the adverse possession claim. No costs order was made.
Key legal issues
#01
Whether the suit was ready for judgment
Holding
No. The suit was not ready for judgment because the plaintiffs did not exhibit a certified copy of the current land register and the service notice was obscure
Reasoning
In preparing the judgment the court found the plaintiffs had only exhibited an old official search from August 2021, so the current registered proprietor of the suit land was unknown. It also found the newspaper notice used for substituted service was obscure, placed in the classified columns, and that the Deputy Registrar had erroneously certified the matter as ready on that basis.
p. 2
Legal principles established
#- A plaintiff seeking a declaration of adverse possession must exhibit a certified copy of the current land register and official search establishing who the current registered proprietor of the suit land is
- Service by advertisement must be by way of a prominent notice; an obscure notice in the classified columns is not proper service
Court orders
#- 1.The plaintiffs shall file a supplementary affidavit to tender a certified copy of the current land register and official search relating to the suit land
- 2.Fresh summonses shall be served on both defendants through a prominent notice of not less than 4x5 inches and print font size 12 to be published in either the Daily Nation or the Standard Newspapers
- 3.The order reserving a Judgment date in this suit is hereby vacated
- 4.Fresh disposal directions will be issued once there is compliance by the plaintiffs
- 5.Mention on 5/11/2024 for further directions
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act in relation to adverse possession claims over registered land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukuna & another v Waweru & another (Enviromental and Land Originating Summons E026 of 2021) [2024] KEELC 6317 (KLR)", Case Analysis (2024). Environmental and Land Originating Summons E026 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6317/eng@2024-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.