[2005] KEHC 1356 (KLR)
The court found that the originating summons did not disclose any cause of action against the first defendant, as there was no complaint made against them. Furthermore, the plaintiffs failed to comply with the mandatory procedural requirement to annex a certified extract of the title to the land. Critically, the...
Source-derived case information.
- Citation
- [2005] KEHC 1356 (KLR)
- Parties
- Plaintiff: David Toroitich; Plaintiff: Chelelgo Cherutich; Plaintiff: Samson Songol; Plaintiff: Francis Ngukwo; Plaintiff: Jackson Rono; Plaintiff: Tolo Chebole; Defendant: County Council of Koibatek; Defendant: Board of Trustees, Livestock Improvement Centre, Mogotio
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 153 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Originating Summons
- Outcome
- originating summons dismissed with costs to the first defendant
- Legal Topics
- Adverse Possession, Trust Land, Title Requirements, Originating Summons Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Toroitich
Plaintiff
Chelelgo Cherutich
Plaintiff
Samson Songol
Plaintiff
Francis Ngukwo
Plaintiff
Jackson Rono
Plaintiff
Tolo Chebole
Plaintiff
County Council of Koibatek
Defendant
Board of Trustees, Livestock Improvement Centre, Mogotio
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Originating Summons
Legal Issues
- 1 Whether the originating summons discloses a cause of action against the first defendant.
- 2 Whether the plaintiffs' claim for adverse possession over trust land is sustainable under Kenyan law.
- 3 Whether the originating summons complies with mandatory procedural requirements regarding title documentation.
Ratio Decidendi
The court found that the originating summons did not disclose any cause of action against the first defendant, as there was no complaint made against them. Furthermore, the plaintiffs failed to comply with the mandatory procedural requirement to annex a certified extract of the title to the land. Critically, the land in question is trust land vested in the County Council of Koibatek, and under the Constitution, only an Act of Parliament can empower the council to set apart such land. Therefore, a claim for adverse possession cannot be sustained against trust land, and the plaintiffs' suit was unsustainable both procedurally and substantively.
Court Disposition
originating summons dismissed with costs to the first defendant
Orders
- The originating summons is dismissed.
- Costs awarded to the first defendant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Suit 153 of 2003[OS]
IN THE MATTER OF S.38 OF THE LIMITATIONS OF ACTIONS ACT, CAP 22
OF THE LAW OF KENYA AND/OR IN THE MATTER OF A DECLARATION
OF TRUST.
BETWEEN
DAVID TOROITICH………………………….………….……….IST PLAINTIFF
CHELELGO CHERUTICH…………………………….….……...2ND PLAINTIFF
SAMSON SONGOL………………………………..…….….……..3RD PLAINTIFF
FRANCIS NGUKWO……………………….……….……….……4TH PLAINTIFF
JACKSON RONO…………………………….…….……….….….5TH PLAINTIFF
TOLO CHEBOLE………………………………….…………..….6TH PLAINTIFF
VERSUS
COUNTY COUNCIL OF KOIBATEK……………………..…IST DEFENDANTBOARD OF TRUSTEES, LIVESTOCK
IMPROVEMENT CENTRE, MOGOTIO……………………2ND DEFENDANT
RULING
The first defendant applied by way of a chamber summons dated 5th August, 2004 for striking out of the originating summons filed by the Plaintiffs and dated 22nd September, 2003. The application was brought under the provisions of order VI Rules l3 (l) (a) of the Civil Procedure Rules and was made on grounds as shown on the face thereof. The plaintiffs’ advocates were duly served with the said application and a hearing notice which clearly showed that the same was listed for hearing on l4th July, 2005. They even acknowledged receipt of the said notice by stamping and initialing the original thereof but they did not attend Court. The first defendant’s application was therefore unopposed. The respondents’ advocates had filed grounds of opposition to the said application but the same were not argued.
I have carefully perused the originating summons and I am satisfied that it does not disclose any cause of action against the first defendant. The Plaintiff’s cause of action, if any, seems to be as against the second defendant only. There is no complaint made as against the first defendant at all.
The originating summons as filed does not comply with the mandatory requirements of order XXXVI rule 3D (2) which states that;-
“The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.”
This is a mandatory requirement – seeKWEYUV OMUTO [I990] KLR 709. The land in question is Trust land and Section ll5 (l) of the constitution vestsall Trust land in the respective county councils within whose area of jurisdiction the land is situated.
The County Council holds the land – for the benefit of the persons ordinarily resident on the same. In the circumstances, the plaintiffs’ claim based on adverse possession cannot be sustained. As per section ll7 of the constitution, only an Act of Parliament can empower a county council to set apart an area of Trust land vested in that County Council for use and occupation.
The plaintiffs cannot therefore claim that they are entitled to be registered as the owners of the (l1) Acre piece of land which they have been occupying since l970 by way of adverse possession.
The plaintiffs’ suit is unsustainable and I dismiss the originating summons with costs to the first defendant.
DATED, SIGNEDand DELIVERED at Nakuru this 26th day of
August, 2005
D. MUSINGA
JUDGE