Odako & another v Kirew (Civil Appeal 262 of 1998) [2000] KECA 416 (KLR) (24 March 2000) (Judgment)
Patrick A. Odako & another v William N. Kirew [2000] eKLR
Neutral citation:
[2000] KECA 416 (KLR)
Republic of Kenya
Civil Appeal 262 of 1998
RSC Omolo, SEO Bosire & EO O'Kubasu, JJA
March 24, 2000
Between
Patrick A. Odako
1st Appellant
Meshack O. Odako
2nd Appellant
and
William N. Kirew
Respondent
(An appeal from the judgment & decree of the High Court of Kenya at Kisii (Mbaluto J) dated 23rd October,1997 in H.C.C.C. No. 281 OF 1992)
Procedure for bringing a claim for title to land by adverse possession.
The main question on this appeal was the procedure for bringing a claim for title to land by adverse possession.
Land - adverse possession- procedure c/commencing claim - must be by way cf originating summons.
Brief facts
Under Order IV Rule 1 CPR, suits are usually started by a plaint, but adverse possession claims under Order 36 Rule 3D must be filed by originating summons with an affidavit and land title, as confirmed in Bwana v Said [1991] 2 KAR 262. The trial judge erred in ignoring this, so the appeal dismissed the respondent’s claim, with no costs to either party.
Issues
What is the proper procedure for instituting a claim for adverse possession?
Held
1. The usual way of starting suits is by way of a plaint but there are also other ways which can be prescribed for starting suits.2. A claim for adverse possession under section 38 of the Limitation of Actions Act must be started by way of originating summons supported by an affidavit and a copy of the title to the land advsersely claimed has to be annexed to the affidavit.
Appeal allowed.
Citations
Bwana v Said & 2 others [1991] KLR 454; [1988-92] 2 KAR 262 Statutes 1. Civil Procedure Rules (cap 21 Sub Leg) order IV rule 1; order XXXVI rule 3D, 3D(1) 2. Limitation of Actions Act (cap 22) section 38
Judgment
1.Order IV rule 1 of the Civil Procedure Rules provides that:
2.That means that the usual way of starting suits is by way of a plaint but there are also other ways which can be prescribed for starting suits.
3.Order 36 rule 3D of the same rules prescribes the manner for starting a suit for adverse possession under section 38 of the Limitation of Actions Act, cap 22 Laws of Kenya. Such a claim is to be started by way of an originating summons supported by an affidavit and a copy of the title to the land adversely claimed has to be annexed to the affidavit.
4.Order 36 rule 3D (1) is mandatory in that it is to the effect that:
5.Various decisions of this Court, among them Bwana v Said [1991] 2 KAR 262 to which we have been referred, specifically lays it down that a claim for adverse possession must be started by an originating summons. The point is really settled and Mr Ondieki for the respondent did not, rightly in our view, seek to challenge this position.
6.As this was a question of jurisdiction, the judge could not shove it aside as he did by simply saying that it ought to have been raised at the beginning. We accordingly allow the appeal and set aside the orders made by the trial judge. We substitute them with an order dismissing the respondent’s claim. We are, however, not inclined to give the appellants either their costs in the superior court or the costs of this appeal. There was really no instrinsic merit in their defence and they succeed merely because the respondent was not correctly advised. We make no order as to costs either in the superior court or in this Court. Those shall be our orders.
DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF MARCH, 2000.R. S. C. OMOLO...................................JUDGE OF APPEALS. E. O. BOSIRE....................................JUDGE OF APPEALE. O. O'KUBASU....................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR