[2001] KECA 327 (KLR)
The Court of Appeal held that the respondent's suit, seeking adverse possession under section 38 of the Limitation of Actions Act, was fatally defective as it was commenced by plaint rather than by originating summons as required by Order 36 rule 3D(1) of the Civil Procedure Rules. This procedural impropriety was a...
Source-derived case information.
- Citation
- [2001] KECA 327 (KLR)
- Parties
- Appellant: George Mwangi Karanja; Appellant: Peter Ndegwa Kamonde; Respondent: Nelius Wairimu Kiunjuri
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 124 of 2000
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- JE Gicheru, E Owuor
- Legal Topics
- Adverse Possession, Limitation of Actions, Originating Summons, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Mwangi Karanja
Appellant
Peter Ndegwa Kamonde
Appellant
Nelius Wairimu Kiunjuri
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether a claim for adverse possession under section 38 of the Limitation of Actions Act can be commenced by plaint instead of originating summons.
- 2 Whether the suit as filed was incompetent and a nullity due to procedural impropriety.
Ratio Decidendi
The Court of Appeal held that the respondent's suit, seeking adverse possession under section 38 of the Limitation of Actions Act, was fatally defective as it was commenced by plaint rather than by originating summons as required by Order 36 rule 3D(1) of the Civil Procedure Rules. This procedural impropriety was a jurisdictional defect that rendered the entire suit and all proceedings pursuant to it a nullity. The court found that it had no power to cure such a fundamental defect, and therefore, the appeal was allowed, the High Court's judgment and decree were set aside, and the suit was struck out as incompetent.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The judgment and decree of the High Court dated 1st November, 1996 are set aside.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, BOSIRE & OWUOR, JJ.A)
CIVIL APPEAL NO. 124 OF 2000
BETWEEN
1. GEORGE MWANGI KARANJA
2. PETER NDEGWA KAMONDE ........................................APPELLANTS
AND
NELIUS WAIRIMU KIUNJURI ............................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at
Nairobi (Justice Mbito) dated Ist November, 1996
in
H.C.C.C. NO.3945 OF 1989 **************
JUDGMENT OF THE COURT
This is an appeal from the decree of the superior court given on Ist November, 1996, by Mbito J., in its Civil Case No.3945 of 1989. The suit was commenced by plaint, by Nelius Wairimu Kiunjiri, the respondent in the appeal, and therein she named George Mwangi Karanja and Peter Ndegwa Kamonde, the appellants, as defendants. The respondent's claim in that suit was basically for an order that she had become entitled by adverse possession to parcels of land known as LOC.10/Kahuti/2664 and LOC.10/Kahuti/2665.
Order IV rule 1 of the Civil Procedure Rules enacts that every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed. The respondent's suit was based on the provisions of section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya and applications made pursuant to that provision must be made as provided underOrder 36 rule 3D(1) of the aforesaid rules, which provides that:
"An application under section 38 of the Limitation of Actions Act shall be made by Originating Summons."
The respondent's suit havin0g not been commenced in that manner it follows that it was made in contravention of the clear provisions of the law and was therefore incompetent. Whateer was done pursuant to the suit was a nullity. This fact was drawn to the attention of the learned trial Judge in written submissions which were submitted to him on behalf of the appellants, but nowhere in his judgment has he made any mentiIonn otfh et hree smuatt,t enro.twithstanding submissions made to us by Mr. Kamwendwa for the respondent that we invoke inherent jurisdiction to cure the defect this being a jurisdictional matter there is nothing we can possibly do to rectify the defect. The defect goes to the root of the matter and renders all that was done a nullity.
The order that therefore commends itself to us is that we allow the appeal, set aside the judgment and decree given on Ist November, 1996, and substitute therefor, an order striking out the suit as incompetent, but we make no order as to the costs of the suit and of the appeal.
Dated and delivered at Nairobi this 9th day of May, 2001.
J.E. GICHERU
.....................................
JUDGE OF APPEALS.E.O. BOSIRE
......................................JUDGE OF APPEALE. OWUOR
.....................................JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR