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ELCDismissedNot stated in judgment· [2025] KEELC 3428 (KLR)

Salim & 4 others v Allan George Njogu Residences Limited & another (Enviromental and Land Originating Summons E008 of 2024) [2025] KEELC 3428 (KLR)

Environment and Land Court
29 April 2025
1,186 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 ruled that a missing certified title extract doesn't kill an adverse possession case if the land and owner are clearly identifiable.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (Mwangi Njoroge, J) determines a preliminary objection dated 29/1/2025 by the 1st Defendant seeking to strike out the Plaintiffs' Originating Summons dated 22/3/2024, by which they claim Mainland North/Section III/2064 (CR 27721), comprising subdivisions MN/III/3494 to 3498, by adverse possession under Sections 7 and 38 of the Limitation of Actions Act. The objection was grounded on Order 37 Rule 7 of the Civil Procedure Rules, 2010, which requires an originating summons for adverse possession to be supported by an affidavit to which a certified extract of title is annexed; the plaintiffs annexed no such extract or search certificate. Both defendants, relying on Mukisa Biscuits and Mtana Lewa, submitted that the requirement is mandatory and its breach fatal and goes to jurisdiction. The plaintiffs, through Ms Musyoki, explained that the suit register was lost or destroyed, and exhibited a Gazette Notice dated 11/6/2021 on reconstruction of the lost register confirming the 1st Defendant's registered ownership; they relied on Sammy v Daystar University and Nancy Wanjiru Ngahu, urging that striking out would be draconian. Adopting the purpose of the annexure requirement as stated in Serah Muthoni Kimani, the court held that the real question is whether the parcel and its proprietor can be determined with precision. Since the 1st Defendant acknowledged ownership and exhibited deed plans, and the Gazette Notice confirmed registered ownership, the defect was curable. The preliminary objection was dismissed with no orders as to costs, and the matter listed for mention on 4/6/25 for compliance and a hearing date.

Key legal issues

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Whether failure to annex a certified extract of title to an adverse possession originating summons under Order 37 Rule 7 renders it incompetent and liable to be struck out

Holding

The objection fails; the defect is curable because the 1st Defendant admits ownership and the plaintiffs exhibited a Gazette Notice establishing the registered proprietor and the parcel

Reasoning

The court held that the purpose of the extract of title is to identify the title holder, the date of acquisition, and the existence of the suit land. Where, as here, the 1st Defendant acknowledged ownership and exhibited deed plans, and the plaintiffs annexed a Gazette Notice dated 11/6/2021 confirming registered ownership, the court could with precision determine the parcel and proprietor. The omission was therefore a curable procedural defect, not a fatal one.

p. 3

Legal principles established

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  • The requirement to annex a certified extract of title under Order 37 Rule 7 is satisfied where the court can with precision determine the parcel claimed and its proprietor; the defect is procedural and curable where title is not in issue

Court orders

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  1. 1.The notice of preliminary objection dated 29/1/2025 is dismissed with no orders as to costs
  2. 2.The matter shall be listed for mention on 4/6/25 for confirmation of compliance and issuance of a hearing date
Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court (not expressly cited); adverse possession claim under Sections 7 and 38 of the Limitation of Actions Act, Cap 22

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, "Salim & 4 others v Allan George Njogu Residences Limited & another (Enviromental and Land Originating Summons E008 of 2024) [2025] KEELC 3428 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3428/eng@2025-04-29

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