[2015] KEHC 3157 (KLR)
The court found that the issues raised in the suit, including the nature of the land and the alleged exchange between the parties, require full hearing and cross-examination. The law on adverse possession and its applicability to the disputed property can only be determined after the substantive issues are canvassed...
Source-derived case information.
- Citation
- [2015] KEHC 3157 (KLR)
- Parties
- Applicant: John Witila Munyasia; Respondent: Wasike Sichangi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 97 of 2011
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed
- Legal Topics
- Adverse Possession, Limitation of Actions, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Witila Munyasia
Applicant
Wasike Sichangi
Respondent
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit should be struck out as an abuse of the court process due to the nature of the land being government or county land.
- 2 Whether adverse possession can be claimed over leasehold property from the County Government.
- 3 Whether the application raises substantive issues that require full hearing.
Ratio Decidendi
The court found that the issues raised in the suit, including the nature of the land and the alleged exchange between the parties, require full hearing and cross-examination. The law on adverse possession and its applicability to the disputed property can only be determined after the substantive issues are canvassed in court. Striking out the suit at this stage would be premature and deny the parties their right to be heard. Therefore, the application to strike out the suit was dismissed, allowing the matter to proceed to full hearing.
Court Disposition
application dismissed
Orders
- The application to strike out the suit is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL CASE NO. 97 OF 2011(O.S.)
JOHN WITILA MUNYASIA …APPLICANT
VERSUS
WASIKE SICHANGI ………..RESPONDENT
RULING
[1] The applicant filed his application dated 23rd July 2014 under provisions of Order 2 Rule 15 seeking for orders that this suit be struck out being an abuse of the due process of the court.
[2] The reasons for the application are given that the disputed plot of approximately 50 x 100 feet also known as plot No. 53 Chwele Market is a leasehold from the County Government of Bungoma. The argument is therefore that under the provisions of Sec. 41(a) (i) Limitation of Actions Act one cannot have adverse possession on Government or County land. That the suit is therefore an abuse of the process of the court.
[3] The defendant respondent argues that the applicant’s only intention and purpose in bringing this application is to delay and keep this fairly old matter in the corridors of justice. That the applicant is relying on a technicality instead of substantial justice. That this application is against the spirit and letter of Article 189(2) (d) of the constitution.
He contends that the applicant exchanged 30 ft x 100 ft of plot No. 53 with the respondent’s father one Paulo Munyasia for plot No. 38 Chwele Market and annexed annexture JWM – 1 to that effect.
[4] It is quite obvious from the submissions of the parties that there are issues raised in the suit that need to be canvassed in court and be tested under cross examination. The law relating to adverse possession will only be applied after the said issues are canvassed. In my view, these are not matters that one can deal with without hearing the parties. The parties should have their day in court.
This application is therefore dismissed with costs to the respondents.
DATED at BUNGOMA this 27th day of May, 2015.
S. MUKUNYA
- JUDGE