[2008] KEHC 829 (KLR)
The court found that while Order XXXVI rule 3D of the Civil Procedure Rules imposes a mandatory requirement to attach a land title extract to an Originating Summons for adverse possession, the existence of a related and possibly consolidated suit (Hccc 972/06) and the unavailability of that file for perusal...
Source-derived case information.
- Citation
- [2008] KEHC 829 (KLR)
- Parties
- Plaintiff: Stephen Njau Njoroge; Plaintiff: Richard Gichini Njoroge; Plaintiff: James Njoroge Njau; Plaintiff: Jane Nyambura Kinyanjui; Plaintiff: Joseph Mucheke; Plaintiff: Muchene Njoroge; Plaintiff: Cecilia Nduruka Njau; Plaintiff: Fred Njuku Njau; Defendant: Lilian Wairimu Ngatho; Defendant: Elizabeth Murungari Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 317 of 2006
- Procedural Posture
- Civil Suit / Interlocutory Application Regarding Compliance With Procedural Rules
- Outcome
- Objection deferred; issue to be raised at hearing of main suit.
- Legal Topics
- Adverse Possession, Originating Summons Requirements, Title Extract Requirement, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Njau Njoroge
Plaintiff
Richard Gichini Njoroge
Plaintiff
James Njoroge Njau
Plaintiff
Jane Nyambura Kinyanjui
Plaintiff
Joseph Mucheke
Plaintiff
Muchene Njoroge
Plaintiff
Cecilia Nduruka Njau
Plaintiff
Fred Njuku Njau
Plaintiff
Lilian Wairimu Ngatho
Defendant
Elizabeth Murungari Njoroge
Defendant
Procedural Posture
Civil Suit / Interlocutory Application Regarding Compliance With Procedural Rules
Legal Issues
- 1 Whether the plaintiffs' Originating Summons for adverse possession is fatally defective for failure to attach a land title extract as required by Order XXXVI rule 3D of the Civil Procedure Rules.
- 2 Whether the suit should be struck out at this stage for non-compliance with procedural requirements or the issue should be determined at the hearing of the main suit.
Ratio Decidendi
The court found that while Order XXXVI rule 3D of the Civil Procedure Rules imposes a mandatory requirement to attach a land title extract to an Originating Summons for adverse possession, the existence of a related and possibly consolidated suit (Hccc 972/06) and the unavailability of that file for perusal justified deferring the determination of the procedural objection. The court ruled that the issue of compliance with the procedural requirement should be raised and determined at the hearing of the main suit, rather than at the interlocutory stage. Costs were ordered to be in the cause.
Court Disposition
Objection deferred; issue to be raised at hearing of main suit.
Orders
- The issue of compliance with Order XXXVI rule 3D Civil Procedure Rules to be raised in the main suit at the hearing stage.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 317 of 2006
STEPHEN NJAU NJOROGE
RICHARD GICHINI NJOROGE
JAMES NJOROGE NJAU
JANE NYAMBURA KINYANJUI
JOSEPH MUCHEKE
MUCHENE NJOROGE
CECILIA NDURUKA NJAU
FRED NJUKU NJAU….……………………………....PLAINTIFFS
VERSUS
LILIAN WAIRIMU NGATHO……..………….…. 1ST DEFENDANT
ELIZABETH MURUNGARI NJOROGE……… 2ND DEFENDANT
JUDGMENT
I. Background Case
1. The subject of this main suit is for adverse possession. The eight plaintiffs claim they are entitled to the land parcel LR.Kiambaa/Waguthu 385.
2. They filed an original summon against the defendants. The defendant filed an application that is a subject of this ruling that the Originating Summons offends Order XXXVI r 3 D Civil Procedure Rules.
3. This order requires that any claim for adverse possession that is filed under an Originating Summons and or a claim for ownership must contain an extract of the land title. This was not done in this Originating Summons. There is a mandatory of the law that the Originating Summons be struck out.
4. In reply the respondents/ plaintiff stated that there is a related case Hccc 972/06 Originating Summons which consolidates these two suits. I do not have sight of this case but there has endorsed in this file similar rulings in the subsequent file on interlocutory order.
II. Findings
5. Whereas the findings are said that
Order c XXXVI r 3 D has not been complied with which orders are mandatory.
6. Whereas the suit is said to be consolidated, I hereby rule that the issue raised herein be raised in the main suit at the stage of hearing on the grounds that file Hccc972/06 is not readily available for perusal before this court.
7. The costs will be in the cause.
DATED THIS 29TH DAY OF JULY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
T.W. Murage instructed by T. Murage & Co. Advocates for the plaintiff/applicant – present
J.W. Kimiti instructed by J.W. Kimiti & Co. Advocates for the defendant/Respondent