Butu & 29 others v Delamere Estates Limited & another (Enviromental and Land Originating Summons E005 of 2025) (Environment and Land) [2025] KEELC 8072 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Mandatory requirement of a certified extract of title in adverse possession suits
Order 37 Rule 7(2) mandatorily requires annexure of a certified extract of title, but the court may excuse non-compliance prior to trial and allow the deficiency to be cured
The court cited Wilson Kazungu Katana, where the Court of Appeal held that failure to annex a certified extract rendered an originating summons incompetent and liable to be struck out. However, reading Order 37 Rule 7(2) together with Order 37 Rule 18, Article 159(2)(d) of the Constitution and Section 19 of the ELC Act, the judge held the court has discretion to remedy non-compliance before trial in the interest of substantive justice.
Consequences of failure to file submissions as ordered
An application whose submissions are not filed as directed is deemed unprosecuted and liable to dismissal for want of prosecution
Directions were issued for disposal by written submissions; only the Respondents complied. Relying on Rowlands Ndegwa v County Government of Nyeri citing Winnie Wanjiku Mwai, the court held that the Applicants' non-compliance demonstrated inertia, inordinate delay, and lack of interest, warranting dismissal for want of prosecution rather than determination on the merits of the injunction criteria.
Legal principles established
#- An originating summons for adverse possession must annex a certified extract of title under Order 37 Rule 7(2), but the court retains discretion to remedy non-compliance before trial in furtherance of substantive justice
- Parties who fail to file submissions as ordered by the court are deemed to have failed to prosecute their application, which is liable for dismissal
Court orders
#- 1.The Applicants' Notice of Motion dated 2nd July 2025 is dismissed for want of prosecution with costs
- 2.The Applicants shall file and serve within thirty (30) days a Supplementary Affidavit with a certified extract of the title and official search to the suit parcel of land
- 3.In default of compliance the suit shall stand struck out
- Jurisdiction invoked
- Order 40 Rule 1 & Order 51 Rule 1 of the Civil Procedure Rules 2010; Section 3A of the Civil Procedure Act (Cap. 21); Article 159(2)(d) of the Constitution; Section 19 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Butu & 29 others v Delamere Estates Limited & another (Enviromental and Land Originating Summons E005 of 2025) (Environment and Land) [2025] KEELC 8072 (KLR)", Case Analysis (2025). ELC Case E007 of 2025 (Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8072/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.