[2014] KEHC 5732 (KLR)
The court held that a suit commenced by way of originating summons for adverse possession requires evidence to be adduced to determine whether the applicant's possession was adverse and when the statutory period began to run. The application to strike out the suit was premature because the grounds relied upon...
Source-derived case information.
- Citation
- [2014] KEHC 5732 (KLR)
- Parties
- Applicant: Charles Angucho Suchia; Respondent: Elephas Nyambaka Cosma
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 123 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed with costs to the applicant
- Legal Topics
- Striking Out of Suit, Adverse Possession, Pleadings Requirements, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Angucho Suchia
Applicant
Elephas Nyambaka Cosma
Respondent
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit discloses a reasonable cause of action for adverse possession.
- 2 Whether the application to strike out the suit is premature given the need for evidence on possession and dispossession.
Ratio Decidendi
The court held that a suit commenced by way of originating summons for adverse possession requires evidence to be adduced to determine whether the applicant's possession was adverse and when the statutory period began to run. The application to strike out the suit was premature because the grounds relied upon required evidence to confirm the facts. Since Order 2 Rule 15(1) prohibits adducing evidence in applications to strike out, and the issues in question could not be resolved without evidence, the application lacked merit and was dismissed with costs to the applicant.
Court Disposition
application dismissed with costs to the applicant
Orders
- The application to strike out the suit is dismissed.
- Costs awarded to Charles Angucho Suchia.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CIVIL CASE NO. 123 OF 2010
CHARLES ANGUCHO SUCHIA ….................. PLAINTIFF/APPLICANT
VERSUS ELEPHAS NYAMBAKA COSMA ..............DEFENDANT/RESPONDENT
RULING
1. The Respondent has moved the court in his application dated 14. 4.2011 brought under Order 2 Rule 15(1) (a), Order 51 Rule 1 of the Civil Procedure Rules seeking; (a). That the Applicant's suit be struck out. (b). The Applicant Charles Suchia be ordered to pay the costs of the application and entire suit.
2. The Respondent contends the suit discloses no reasonable cause of action since the Applicant has been in possession of the land with the Respondents permission and cannot qualify to be an adverse possessor. Finally that the Applicant has not established through his pleadings that the Respondent has been dispossessed for the statutory period. 3. The Applicant opposed the application by filing a replying affidavit. He depones his suit raises a reasonable cause of action as he has been in occupation of the suit land for a period of over 12 years. 4. Both parties asked the court to look at the pleadings as filed (Application and replying affidavit) and make a finding. The court has considered those pleadings filed. A suit commenced by way of originating summons for adverse possession requires evidence to be adduced to establish whether the Applicant's possession was adverse to the rights of the title holder (Respondent). You cannot by reading the pleadings only arrive at a decision whether occupation was by permission or not. Secondly, evidence is required to be led when time is considered to have begun running. In light of the foregoing, the present application seeking to strike out the suit is therefore premature. In any event under Order 2 Rule 15 (1) no evidence must be adduced in seeking to strike out suit. Yet grounds (a), (b) and (c) of the Motion require evidence to confirm the facts set out in the grounds. 5. Consequently I find this application as premature and lacking in merit. I hereby dismiss it with costs to Charles Angucho Suchia. DATED, SIGNED and DELIVERED this 20th day of March 2014
A. OMOLLO JUDGE