[2023] KEELC 18496 (KLR)

Gachoki & 5 others v Nguu (Environment & Land Case E32 of 2022) [2023] KEELC 18496 (KLR) (6 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18496 (KLR)

Republic of Kenya

In the Environment and Land Court at Kerugoya

Environment & Land Case E32 of 2022

JM Mutungi, J

July 6, 2023

Between

John Muriuki Gachoki

1st Plaintiff

James Njiraini Gachoki

2nd Plaintiff

David Wachira Gachoki

3rd Plaintiff

Mary Muthoni Gachoki

4th Plaintiff

Edith Wambui Gachoki

5th Plaintiff

Irene Wairimu Gachoki

6th Plaintiff

and

Frank Kariithi Nguu

Defendant

Ruling

1. The Plaintiffs instituted the present suit vide an Originating Summons dated September 22, 2022 filed in Court on September 12, 2022. The Plaintiffs claimed to have acquired title to land parcel Inoi/Kerugoya/1145 measuring 0. 981 Hectares by way of adverse possession. The Plaintiffs sought for the cancellation of the title in the name of the Defendant and for the title in respect of the parcel of land to be issued in their favour. The Plaintiff averred that they had been in exclusive, continuous and uninterrupted occupation and possession of the suit property for close to 59 years and consequently the Defendant’s title to the land had become extinguished by virtue of the doctrine of adverse possession.

2. The Plaintiffs filed an Affidavit in support of the Originating Summons. However, though the Supporting Affidavit indicated there were annextures that were included, no such annextures were included. The Defendant filed a Replying Affidavit dated April 5, 2023 in opposition to the Originating Summons. The Defendant denied the Plaintiffs had any right to claim his land through adverse possession since the Court had previously in Kerugoya RMCC No 49 of 1991 ordered for their eviction and they were infact evicted by K S Kimotho Auctioneers in 1993. The Defendant averred the developments on the suit land were made by him and not the Plaintiffs. The defendant contended that the Plaintiffs having been forcefully evicted, their re-entry and occupation would be forceful and in contempt of the Court Order and that a claim of adverse, possession would not be available to them. The Defendant averred that one of the Plaintiffs, David Wachira Gachoki had unlawfully lodged a caution against the title of his land and he prayed that the caution be removed.

3. The Plaintiffs with the leave of the Court served the Originating Summons on the Defendant by way of substituted service. On March 2, 2023 both Counsel for the Plaintiffs and the Defendant appeared for mention of the matter for directions. The Court issued directions on service of the Originating Summons and filing of the response and fixed the matter on May 4, 2023 for pre-trial directions.

4. On May 4, 2023 only Mr PM Muchira Advocate for the Defendant appeared. He complained that the Plaintiff had not served him with the Originating Summons as he had undertaken to do. Mr Muchira further complained that the Originating Summons filed in Court did not have the annextures referred to in the Supporting Affidavit and was therefore not competent and should be struck out. The Court having regard to the sentiments expressed by the Defendant’s Counsel directed that the Plaintiffs be served with a Notice to show cause if any, why the Originating Summons should not be struck out for being incompetent. The Notice to Show Cause was issued and served for hearing on June 13, 2023.

5. On June 13, 2023 only PM Muchira Advocate for the Defendant appeared. Mr Muchira urged the Court to strike out the Originating Summons for failure to comply with Order 37 of the Civil Procedure Rules.Order 37 Rule 7(1) & (2) of the Civil Procedure Rules directs how an application predicated on Section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya regarding a claim for adverse possession should be made.Order 37 Rule provides as follows:-7(1) An application under Section 38 of the Limitation of Actions Act 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.The Plaintiffs in their Supporting Affidavit at paragraph 3 depones as follows:-3). That, sometimes on or around 1991 we learnt that the suit property had been transferred to Frank Kariithi Nguu, the Defendant herein, who is unknown to us. (attached hereto is a copy of search marked JMG -01).In as much as a copy of search is not an abstract of the title, none was attached. It is not clear when the search was carried out and what details it contained. Under paragraph 9 of the Affidavit the Plaintiffs claim they had effected developments on the land and state they had attached photographs showing the alleged developments. No attachments were included.

6. It is evident that the Originating Summons as filed did not comply with Order 37 Rule 7(2) of the Civil Procedure Rules. In an application for title on account of adverse possession it is mandatory that an abstract of title of the affected land be exhibited. The abstract of title (green card) apart from giving the history of all the transactions affecting the land, shows who the current registered owner of the land was. The claim for adverse possession invariably is directed against the person shown to be registered as owner as at the time the suit is instituted. It is that person whose title stands to be cancelled if the claim is successful. Where an abstract of title is not annexed as required under Order 37 Rule 7(2) of theCivil Procedure Rules, the application in my view is fatally defective as the Court cannot verify who the registered owner of the land is. Equally where an Affidavit is said to carry annextures and such annextures are not annexed, the Affidavit is rendered to be defective and incompetent as the annextures are meant to be part of the Affidavit and if they are lacking, the Affidavit is therefore incomplete and cannot be relied upon.

7. In the instant matter the Plaintiffs, Supporting Affidavit though indicating to have annextures, none were annexed. The Affidavit is defective and incompetent and the same cannot therefore support the Originating Summons. The Plaintiffs were accorded the opportunity to explain themselves and they did not take up the chance. Consequently I find that the Originating summons did not comply with the provisions of the Law and it is defective and incompetent. The same is ordered struck out with costs to the Defendant.

RULING DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 6TH DAY OF JULY 2023. J. M. MUTUNGIJUDGE