[2018] KEELC 2785 (KLR)
The court found that the plaintiff failed to annex a copy of the title deed or provide a proper description of the parcels of land claimed, as required by Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. The absence of these mandatory documents rendered the suit...
Source-derived case information.
- Citation
- [2018] KEELC 2785 (KLR)
- Parties
- Plaintiff: Safari Kalume Mwagona; Defendant: Kenya National Assurance Co. (2001) Ltd (Formerly, Kenya National Assurance Company Ltd)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 132 of 2014
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- suit dismissed
- Judges
- LC Komingoi
- Legal Topics
- Adverse Possession, Limitation of Actions, Title Documentation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safari Kalume Mwagona
Plaintiff
Kenya National Assurance Co. (2001) Ltd (Formerly, Kenya National Assurance Company Ltd)
Defendant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the plaintiff has established a valid claim for adverse possession over the suit parcels of land.
- 2 Whether the plaintiff has complied with the procedural requirements under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules.
- 3 Whether the suit is competent in the absence of a title deed or proper description of the land.
Ratio Decidendi
The court found that the plaintiff failed to annex a copy of the title deed or provide a proper description of the parcels of land claimed, as required by Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. The absence of these mandatory documents rendered the suit incompetent. The court was unable to comprehend the plaintiff's witness statement and noted the existence of a related suit (Mombasa HCCC No. 440 of 2002 (O.S)), suggesting that the plaintiff could pursue his claim there. Consequently, the suit was dismissed for non-compliance with procedural requirements.
Court Disposition
suit dismissed
Orders
- The suit is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
MSC CIVIL APPLICATION NO 132 OF 2014 (O.S)
SAFARI KALUME MWAGONA............................................PLAINTIFF
VERSUS
KENYA NATIONAL ASSURANCE CO. (2001) LTD
(Formerly, Kenya National Assurance Company Ltd..........DEFENDANT
JUDGMENT
1. The Plaintiff has come to court by Originating Summons dated 28th April, 2014. The same is supported by the affidavit sworn by himself Safari Kalume Mwagona on the 28th April, 2014.
2. By an order of the court the Respondent was served through advertisement in the Daily Nation. The extract was attached to the Originating Summons.
3. The Defendant did not file any response to the Plaintiff’s claim. Interlocutory judgment was then entered and the matter proceeded to formal proof.
4. The Plaintiff filed a witness statement dated 24th October, 2017. I have tried to go through the same but I am unable to comprehend it.
5. In paragraph 5 of his affidavit in support, the Plaintiff admits there exists Mombasa HCCC No. 440 of 2002 (O.S).
6. He claims to have bought the parcels of land from Charo Kazungu Matsere. He has attached a sale agreement. The said sale agreement does not give a description of the parcels of land he was buying.
7. The Plaintiff has not annexed a copy of the title deed for the parcels in which he claims adversely. This is contrary to Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules.
8. I find this suit incompetent and the same is dismissed with no orders as to costs.
9. The Plaintiff has an option of applying to be enjoined in Mombasa HCCC 440 of 2002(O.S) so as to ventilate his claim.
It is ordered.
Dated, signed and delivered atMombasa on the28th dayofFebruary 2018.
_______________
L. KOMINGOI
JUDGE
28/2/2018