Patrick A. Odako & another v William N. Kirew

2. A claim for adverse possession under section 38 of the Limitation of Actions Act must be started by way of originating summons supported by an adavit and a copy of the title to the land advsersely claimed has to be annexed to the adavit. Appeal allowed. Citations Bwana v Said & 2 others [1991] KLR 454; [1988-92] 2 KAR 262 Statutes 1. Civil Procedure Rules (cap 21 Sub Leg) order IV rule 1; order XXXVI rule 3D, 3D(1) 2. Limitation of Actions Act (cap 22) section 38 JUDGMENT 1. Order IV rule 1 of the Civil Procedure Rules provides that: “Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.” 2. That means that the usual way of starting suits is by way of a plaint but there are also other ways which can be prescribed for starting suits. 3. Order 36 rule 3D of the same rules prescribes the manner for starting a suit for adverse possession under section 38 of the Limitation of Actions Act, cap 22 Laws of Kenya. Such a claim is to be started by way of an originating summons supported by an adavit and a copy of the title to the land adversely claimed has to be annexed to the adavit. 4. Order 36 rule 3D (1) is mandatory in that it is to the eect that: “.....shall be made by originating summons.” 5. Various decisions of this Court, among them Bwana v Said [1991] 2 KAR 262 to which we have been referred, specically lays it down that a claim for adverse possession must be started by an originating summons. The point is really settled and Mr Ondieki for the respondent did not, rightly in our view, seek to challenge this position. 6. As this was a question of jurisdiction, the judge could not shove it aside as he did by simply saying that it ought to have been raised at the beginning. We accordingly allow the appeal and set aside the orders made by the trial judge. We substitute them with an order dismissing the respondent’s claim. We are, however, not inclined to give the appellants either their costs in the superior court or the costs of this appeal. There was really no instrinsic merit in their defence and they succeed merely because the respondent was not correctly advised. We make no order as to costs either in the superior court or in this Court. Those shall be our orders. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF MARCH, 2000. R. S. C. OMOLO ................................... JUDGE OF APPEAL S. E. O. BOSIRE https://new.kenyalaw.org/akn/ke/judgment/keca/2000/416/eng@2000-03-24 2

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.................................... JUDGE OF APPEAL E. O. O'KUBASU .................................... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2000/416/eng@2000-03-24 3

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