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ELCDismissedNot stated in the judgment· [2025] KEELC 7120 (KLR)

Chunguli & another v Isanduli (Enviromental and Land Originating Summons E003 of 2024) [2025] KEELC 7120 (KLR)

Environment and Land Court
16 October 2025
EAE. Asati
926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an adverse possession case survives even without the title extract annexed, as long as ownership isn't disputed.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Vihiga (Asati J) on a Notice of Motion dated 5th May 2025 by the defendants seeking to strike out the plaintiffs' Originating Summons claiming adverse possession, on two grounds: failure to annex a certified copy of the register to the Supporting Affidavit as allegedly required by Order 37 Rule 7(2) of the Civil Procedure Rules, and lack of locus by the applicant to transfer the suit portion. The plaintiffs opposed, arguing the application was misconceived, that pleadings had not closed, that a certificate of official search was already on record, and that the requirement was curable by amendment, invoking Article 159(2)(d) of the Constitution. The court held that Order 37 Rule 7(2) requires an extract of title to be annexed to the Supporting Affidavit, but its purpose is to enable the court ascertain the existence and proprietorship of the suit property from the onset. Since there was no dispute that the suit land was registered in the defendant's name, and a certificate of official search to that effect was in the list of documents, the omission was not fatal. Relying on the Court of Appeal's reasoning in Nairobi Civil Appeal No. 241 of 2013, which applied Symon Gatutu Kimamo & 587 Others v East African Portland Cement Co Ltd, the court dismissed the application, ordered each party to bear its own costs, and directed the plaintiff to file and serve the extract of title (copy of register or green card) within 14 days by way of Supplementary Affidavit.

Key legal issues

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01

Whether failure to annex a certified copy of the register/extract of title to the Supporting Affidavit is fatal to an Originating Summons for adverse possession

Holding

The omission is not fatal where the certificate of official search on record shows the registered owner and proprietorship is not in dispute

Reasoning

Order 37 Rule 7(2) requires an extract of title to be annexed to the Supporting Affidavit. The purpose is to enable the court ascertain the existence and proprietorship of the suit property from the onset. Here documents filed contained a certificate of official search showing the land registered in the defendant's name, so the requirement's purpose was fulfilled and striking out was unwarranted. The plaintiff was instead directed to file the extract within 14 days.

p. 2

Legal principles established

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  • The purpose of requiring an extract of title to be annexed to the Supporting Affidavit in an adverse possession suit is to enable the court ascertain the existence and proprietorship of the suit property; omission of the extract is not fatal where proprietorship is not in dispute

Court orders

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  1. 1.The Notice of Motion dated 5th May 2025 is dismissed
  2. 2.Each party to bear own costs of the application
  3. 3.The plaintiff is directed to file and serve extract of the title (copy of register or green card) in respect of the suit land within 14 days by way of Supplementary Affidavit
Jurisdiction invoked
Order 37 Rule 7(2) 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, "Chunguli & another v Isanduli (Enviromental and Land Originating Summons E003 of 2024) [2025] KEELC 7120 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7120/eng@2025-10-16

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