https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4951

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC CASE No. E106 OF 2026** **AFRICAN DEVINE CHURCH** ………………………………….. **APPLICANT** **VERSUS** **ROBERT KIMAIYO KOECH** …………………………… **1ST RESPONDENT** **ROSALINE JEMELI KOECH** ………………………….. **2ND RESPONDENT** **YUSUF KIPTUM KOECH** ………………………………. **3RD RESPONDENT** **RULING:** 1. The Plaintiff instituted this suit vide Plaint dated 15th November, 2025. It sought to be declared an owner of a 1/8 of an Acre of the land known as **Eldoret Municipality Block 21(King’ong’o) /444**, the suit property herein, by way of constructive trust and adverse possession. The Plaintiff also sought a declaration that the Defendants’ acts of trespass were unlawful and illegal, as well as a permanent injunction restraining them from dealing with the said 1/8 of Acre Portion. In addition, the Plaintiff sought an order directing the Land Registrar to register it as the owner of the land, general damages for trespass and eviction orders. 2. The 1st Defendant entered appearance on 1st April, 2026 vide Memorandum of Appearance dated 25th March, 2026 and filed through the firm of Betty Koech & Company Advocates. On the same date, the 1st Defendant filed his statement of Defence denying the allegations in the Plaintiff’s Plaint, and asking that it be dismissed with costs. The 1st Defendant also filed a Notice of Preliminary Objection dated 1st April, 2026 raising the following objection:- 3. The suit as filed offends the provisions of Order 37 Rule 7 of the Civil Procedure Rules as a claim for Adverse Possession under Section 38 of the Limitation of Actions Act should be instituted by way of Originating Summons. **Submissions:** 1. Pursuant to directions issued by this court, the Notice of Preliminary Objection (PO) was canvassed by way of written submissions. The parties herein have complied by filing their respective submissions. ***The 1st Defendant’s Submissions;*** 1. The 1st Defendant’s Submissions are dated 17th May, 2026 where Counsel submitted that under the law, a claim for adverse possession must strictly be brought through Originating Summons. Counsel argued that the Plaintiff seeks to enforce an agreement for sale made in 1996, yet the suit was filed in 2025. Counsel submitted that the suit is time barred as far as it involves the issue of breach of contract. Counsel argued that since the claim is being brought out of the allowable time, it ought to have been made by way of Originating Summons as required under Order 37 Rule 7 for it to succeed. Counsel pointed out that the Plaintiff however made his claims by way of a Plaint. 2. Counsel also argued that the statutory provisions regarding claims for adverse possession, including Section 38 of the Limitation of Actions Act, are neither optional nor suggestive but are mandatory. Counsel cited ***Cheruiyot vs Siror (2026) KEELC 1312 (KLR)*** in support of her arguments. Counsel submitted that the Plaintiff disregarded the provisions of Order 37 Rule 7 of the Civil Procedure Rules. Counsel contended that the anomaly is neither a minor one that can be ignored, nor a technicality, but goes to the core of the pleadings. Counsel urged that for offending Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, the claim is fatally defective and should be dismissed with costs. ***The Plaintiff’s Submissions;*** 1. In the Plaintiff’s Submissions dated 13th May, 2026, Counsel submitted that the 1st Defendant did not state what relief he sought from his PO. As to the merits of the PO, Counsel relied on the definition thereof given in ***Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) E.A 696*** and ***Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others (2015) eKLR***. Counsel submitted that the present PO is raised on grounds that the suit offends the provisions of Order 37 Rule 7 of the Civil Procedure Rules, which provides the manner in which a claim for adverse possession is to be made. Counsel acknowledged that rules of procedure cannot be flouted, but Article 159(2)(d) gives the court discretion to allow the suit, unless it will result in a miscarriage of justice, and cited ***Mary Nduta Mutungi & 5 Others vs Wambui Njenga & 2 Others (2017) eKLR***. 2. Counsel further cited ***Chevron (K) Limited vs Harrison Charo Wa Shutu (2016) eKLR***, where it was held that a claim for adverse possession can be brought by way of a Plaint. Counsel referred the court to the reliefs sought in this suit, and argued that the said reliefs are complex and contentious questions of law which cannot be pleaded by way of an Originating Summons. Counsel further argued that the PO raised touches on procedure as opposed to a point of law. Counsel thus concluded that the same does not meet the threshold set out in the ***Mukisa Biscuits Case*** on preliminary objections. Counsel thereby concluded that the present Preliminary Objection lacks merit and ought to be dismissed with costs. **Analysis and Determination:** 1. I have considered the Preliminary obejction raised herein, the written submissions and the authorities cited therein, as well as the applicable law. The following are the issues identified for determination:- 2. *Whether the 1st Defendant Notice of Preliminary Objection meet the threshold for a proper PO;* 3. *Whether the 1st Defendant’s Notice Preliminary Objection dated 1st April, 2026 has merit; and* 4. *Who shall bear the costs of the present PO?* 5. **Whether the 1st Defendant’s Notice of Preliminary Objection meet the threshold for a proper Preliminary objection;** 6. To begin with, Counsel for the Plaintiff in his submissions argued against the Preliminary objection, stating that it did not meet the threshold for a PO. Counsel argued that the objection raised by the 1st Defendant touches on procedure instead of raising a point of law. Thus, before proceeding to the merits of the Preliminary objection, I must first consider whether the Preliminary objection raised by the 1st Defendant meets the threshold of a proper Preliminary objection. 7. As to what constitutes a proper preliminary objection, in ***Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696***, Law, JA held that:- ***“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”*** 1. In the same case, Sir Charles Newbold P. explained that:- ***“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.”*** 1. In the case of ***Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others (2014) eKLR***, the Supreme Court held that:- ***“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”*** 1. From the foregoing, it is clear that procedure, especially where prescribed by statute, goes to the root of a matter, and is capable of determining the matter preliminarily. The fact that the suit herein was commenced by way of Plaint instead of an originating summons as prescribed by law needs no evidence as it flows and can be established entirely from the pleadings filed before this court. As such it is a pure point of law and can be raised as a preliminary objection. There can be no doubt therefore that the PO meets the threshold of a proper PO. 2. **Whether the 1st Defendant’s Notice Preliminary Objection dated 1st April, 2026 has merit;** 3. Turning to the merits of the present PO, the 1st Defendant objects to the suit herein stating that it offends Order 37 Rule 7 of the Civil procedure Rules, which provides as follows:- ***7. Adverse possession [Order 37, rule 7]*** ***(1)An application under section 38 of the Limitation of Actions Act (Cap. 22) shall be made by originating summons.*** ***(2)The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.*** ***(3)The court shall direct on whom and in what manner the summons shall be served.*** 1. The 1st Defendant has cited the case of ***Cheruiyot vs Siror (Environment and Land Case 117 of 2016) (2026) KEELC 1312 (KLR)***, and in particular highlighted paragraphs 34 and 47 thereof, which read as follows:- ***34. In the statement of claim, the plaintiff bases his claim on a sale agreement dated 1/3/1976 with the defendant. The procedure to file a suit on adverse possession is governed by Order 37 of the Civil Procedure Rules. In Samuel Miki Waweru -vs- Jane Njeri Civil Appeal No. 122 of 2001, the court said that a claim for adverse possession cannot succeed if the person asserting such a claim is in possession of the land as the owner or in pursuance of an agreement for sale or lease or otherwise.*** ***…*** ***47. Another issue raised is whether the applicant can introduce a claim for adverse possession through an amended plaint. This question was addressed by the Court of Appeal in Chevron (K) Ltd -vs- Harrison Charo Wa Shutu [2016] eKLR and Gulam Mariam Noordin -vs- Julius Charo KarisaCivil Appeal No. 26 of 2015. The court said that where a party is sued for vacant possession, they can raise a defence by statute of limitation by filing a defence or a defence and counterclaim. The court said that it's only when a party applies to be registered as proprietor of land by adverse possession that Order 37 Rule 7 requires such a claim to be brought by an originating summons. See also Emily Chepkor Chepkwony -vs- Paul Arap Chandoek [2021] eKLR.*** 1. It is indeed true and the court agrees that the provisions of Order 37 Rule7 of the Civil Procedure Rules requires that a claim for adverse possession ought to be brought to court by way of Originating Summons. However, the overriding objective under Section 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution enjoin the courts to do substantive justice without being shackled by technicalities of procedure. This overriding objective otherwise referred to as the oxygen principle (O2) is mirrored under section 3 of the Environment and Land Court Act. In addition, Section 19(1) of the Environment and Land Court Act provides that:- ***In any proceedings to which this Act applies, the Court shall act expeditiously, without undue regard to technicalities of procedure.*** 1. Notably, in ***Cheruiyot vs Siror (Supra)***, the court cited the decision of the Court of Appeal in ***Chevron (K) Ltd vs Harrison Charo Wa Shutu (2016) eKLR***, where it was held as follows as regards the procedure for commencement of adverse possession claims:- ***“The courts, have since this decision, held that a claim by adverse possession can be brought by a plaint. See Mariba v Mariba Civil Appeal No. 188 of 2002, counter-claim or defence as was the case here. See Wabala v Okumu (1997) LLR 609 (CAK). In Gulam Mariam Noordin v Julius Charo Karisa, Civil Appeal No 26 of 2015, where the claim was raised in the defence, this Court in rejecting the objection to the procedure, stated the law as follows;*** ***‘Where a party like the respondent in this appeal is sued for vacant possession, he can raise a defence of statute of limitation by filing a defence or a defence and counter-claim. It is only when the party applies to be registered as the proprietor of land by adverse possession that Order 37 Rule 7 requires such a claim to be brought by originating summons. It has also been held that the procedure of originating summons is not suitable for resolving complex and contentious questions of fact and law. Be that as it may, and to answer the question, whether it was erroneous to sanction a claim of adverse possession only pleaded in the defence, we refer to the case of Wabala v Okumu [ 1997] LLR 609 (CAK), which, like this appeal the claim for adverse possession was in the form of a defence in an action for eviction. The Court of Appeal in upholding the claim did not fault the procedure. Similarly, in Bayete Co. Ltd v Kosgey [ 1998] LLR 813 where the plaint made no specific plea of adverse possession, the plea was nonetheless granted’.”*** 1. Moreover, the Court of Appeal in ***Luke Cheruiyot & 37 others vs National Oil Corporation of Kenya (2015) KECA 572 (KLR)*** favourably cited the case of ***Microsoft Corporation vs Mitsumi Computer Garage Ltd. & Another (2001) KLR 470*** and stated thus:- ***“Rules of procedure are the hand maidens and not mistresses of justice. They should not be elevated to a fetish. Theirs is to facilitate the administration of justice in a fair, orderly and predicable manner, not to fetter or choke it. In my opinion, where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form and procedure which do not go to the jurisdiction of the court or prejudice the adverse party in any fundamental respect ought not to be treated as nullifying the legal instruments thus affected.”*** 1. Therefore, guided by the above decision of the Court of Appeal, I find that the present suit is not rendered fatally defective merely because it is commenced by way of a plaint rather than by way of an originating summons. Indeed, the commencement of the suit by way of a plaint does not in this case affect the jurisdiction of the court to hear the claim for adverse possession presented by the Plaintiff herein. As it is, the 1st Defendant has not claimed that he stands to suffer any prejudice if the matter is allowed to proceed to trial on merits as opposed to ending it for want of procedure. 2. Furthermore, by dint of the provisions of Order 37 Rule 10 of the Civil Procedure Rules, an originating summons brought under Section 38 of the Limitation of Action Act and Order 37 Rule 7 of the Civil Procedure Rules can properly be converted into a plaint and vice versa. If commencing the suit by way of Plaint was indeed fatal, the law would not allow such claims to be converted into a Plaint for purposes of hearing and determination. 3. However, what I note from the pleadings is that the Plaintiff herein has not only claimed adverse possession, but also imputed the issue of fraud in its pleadings. In ***Cheruiyot vs Siror (Supra)***, the learned judge held as follows:- ***“44. Looking at the pleadings on record, the applicant cannot have it both ways. On one hand, he is saying that the title held by the respondent was fraudulently acquired and then still claims the same parcel of land under the doctrine of adverse possession. If that be so, his cause of action would be for rectification of title by cancellation under Section 80 of the Land Registration Act and not adverse possession.”*** 1. The law is clear that an adverse possession claim cannot co-exist where the Claimant also alleges fraud. Legally speaking, the Claimant must first admit the legality of the registered owner’s title before they make their claim for adverse possession. 2. I note that as indicated by the Plaintiff, the 1st Defendant did not indicate what reliefs it seeks from the PO. Nevertheless, it is well understood that if successfully argued, a PO has the ability to determine the suit preliminarily. Ideally, this would mean that the suit is automatically struck out by virtue of the PO. However, courts have repeatedly held that the power to strike out a suit preliminarily is a draconian measure, which should be resorted to only as a last resort and when the suit is so hopeless and cannot be salvaged, even by an amendment. 3. Courts have further held that where there is a semblance of cause of action, parties should be allowed their day in court. The law further requires that a plaintiff should not be driven from the judgment seat unless the case is hopeless. In ***DT Dobie & Company (Kenya) Ltd vs Muchina & another (Civil Appeal 37 of 1978) (1980) KECA 3 (KLR)***, the Court of Appeal held that:- ***“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”*** 1. In ***Stephen Kaguku Mariba vs Kibe Mariba, Civil Appeal No 188 of 2002***, the question before the Court of Appeal was whether a claim for adverse possession, commenced by way of plaint instead of an originating summons, was sustainable. The Court of Appeal examined the provisions of the then Civil Procedure Rules, which was re-enacted as Order 37 rule 7 of the current Civil Procedure Rules, and held that:- ***“However, this Court in Mucheru vs Mucheru [2000]2 EA 455 said that the procedure by originating summons is intended to enable simple matters to be dealt with in a quick and summary manner. In saying so, it relied on the decisions in Bhari vs Khan [1965] EA 94, Kibutiri vs Kibutiri [1982-88] 1 KAR 60 and Kenya Commercial Bank vs James Osebe [1982-88] 1 KAR 48. The Court also referred to the judgment of Sir Ralph Windham C.J. in Salehmohamed Mohamed Vph Saldanha 3, Kenya Supreme Court (Mombasa) Civil case Number 243 of 1953 (UR), where the scope and general purpose of procedure by way of originating summons were being considered. His Lordship said:-*** ***‘Such procedure is primarily designed for the summary and “ad hoc” determination of points of law or construction or of certain questions of fact, or for the obtaining of specific directions of the court, such as trustees, administrators, or (as here) the court’s own execution officers. That dispatch is an object of the proceedings is shown by Order XXXVI, which provides that they shall be listed as soon as possible and be heard in chambers unless adjourned by a judge into court.’*** ***While it is true that the suit was commenced by plaint instead of by the procedure of Originating Summons, we do not consider the error to be fatal in view of the provisions of Order XXXVI r 10 of the Civil Procedure Rules. That provision requires the trial court in an appropriate case, to continue proceedings commenced by Originating Summons as though the same had been begun by Plaint.”*** 1. In the present case, the Plaintiff pleaded not only adverse possession, but also a constructive trust arising from the same set of facts. Constructive trust is not one of the issued preserved under Order 37 Rule 7 for commencement by way of Originating Summons. Since the Plaintiff is desirous of pursuing both a claim for adverse possession and constructive trust, I see no need why the Plaintiff then should be required to file an Originating summons to pursue the adverse possession claim, and another suit to pursue the alleged trust. In the interests of justice and to avoid a multiplicity of suits, the two claims can be pursued contemporaneously in one suit. 2. For the above reasons, I find that the Plaintiff’s suit herein is one that can be saved by amendment of the pleadings filed. In ***Daniel Ouma Okuku vs Kenya Plantation & Agricultural Workers Union & Anor (2019) eKLR***, the Court of Appeal found that:- ***“Order 8 Civil Procedure Rules donates wide discretionary power to the trial court to allow amendment of pleadings for the purpose of determining the real questions in controversy between the parties or to correct any defect or error in the proceedings. The court may do so either on its own motion or on application by a party.*** ***… Under the said Order 8 Civil Procedure Rules parties can amend their pleadings with the leave of the court at any time before judgment. As stated by the single judge in the case of Suleiman vs Karasha (1989) eKLR it did not matter whether the hearing had been concluded – the court had to consider such an application for leave to amend a pleading and give effect to such an application as it deemed fit. The court has wide discretion to amend pleadings at any stage of the proceedings so as to bring out the real issues in controversy between the parties and on such terms as to costs as may be just.”*** 1. The way I see it, instead of striking out the suit, the Plaintiff can either amend his Plaint to regularise the adverse possession claim, or in the alternative, completely abandon the claim for adverse possession in favour of the constructive trust as the case may be. 2. **Who shall bear the costs of the present PO?** 3. As regards the costs of the application, under Section 27(1) of the Civil Procedure Act, it is trite that costs are awarded at the discretion of the court, and are that they follow the events. Since the 1st Defendant’s PO has failed, he shall bear the costs of the present PO, which shall be payable to the Plaintiff. **Orders:-** 1. The result is that the 1st Defendant’s Notice of Preliminary Objection dated 01.04.2026 is found to lack merit. The same is dismissed with costs to the Plaintiff. 2. Orders accordingly. **DATED, SIGNED** and **DELIVERED** virtually at **ELDORET** on this **30TH** day of **JULY, 2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the presence of:- Mr. Rotich holding brief for Mr. Mathai for Plaintiff. Ms. Koech for 1st Defendant. No appearance for 2nd & 3rd Defendants. Court Assistant - Laban.