IN THE HIGH COURT OF KENYA
AT KISII
CIVIL CASE NO. 254 OF 2009
RULING
1. By the application dated 30th November 2010, the Defendant/Applicant, Jackson Ondari Kombo prays that the plaint herein dated 24th November 2009 be struck out as the same does not disclose any reasonable cause of action. The applicant also prays that the plaintiff’s suit be dismissed with costs.
2. The application is supported by the grounds on the face thereof, namely that:-
3. The applicant’s application is brought under the provisions of Order VI Rules 13 (1) (a) (2) and 16 of the[old] Civil Procedure Rules, Cap 21 Laws of Kenya.
4. The application is opposed vide the grounds of opposition dated 25th May 2011 namely that:-
5. Briefly, the facts giving rise to this application are that by plaint dated 24th November 2009, the plaintiff/respondent George Arwonga Kombo sued the defendant/applicant seeking the following reliefs:-
6. The plaintiff’s claim is premised on the allegation that on or about 31st May 2008 or thereabout the defendant sold the suit premises to the plaintiff for the sum of Kshs.280,000/= out of which the defendant received a sum of Kshs.242,000/= on execution of the sale agreement, the balance of the purchase price of Kshs.38,999/= was to be paid later, but for some reason the defendant refused to receive the said balance, hence these proceedings. According to the plaint the defendant remains the registered absolute proprietor of the suit land known as L.R. NO.
WEST MUGIRANGO/BONYAMATUTA/115, being an agricultural parcel of land within the meaning of the Land Control Act, Cap 302, Laws of Kenya. The plaintiff/respondent also alleges at paragraph 4 of the plaint that he has been in full control, possession and management of the suit land with the full consent of the defendant for over 40 years without any intervention. Paragraph 7 of the plaint sets out the plaintiff’s claim against the defendant/applicant.
8. In the counter-claim, the defendant prays for an order of eviction of the plaintiff from the suit land and also seeks a permanent injunction restraining the plaintiff by himself, his servants, agents/employees from trespassing onto or in any manner whatsoever interfering with the suit land. The defendant also prays for costs and interest at court rates.
9. By agreement of the parties, this application was canvassed by way of written submissions. The defendant/applicant has raised three (3) main arguments in his submissions:-
Order XXXVI Rule 3 (1) of the [old] Civil Procedure Rules, which is now found under Order 27 Rule 7 of the Civil Procedure Rules, 2010 reads:-
“An application under section 38 of the Limitations of Actions Act, shall be made by Originating Summons. The summons shall be supported by an Affidavit to which a certified extract of the title to the land in question has been annexed.”
It is argued that for failure to comply with the rules, this application must fail.
2. That the plaintiff did not obtain Land Control Board consent for the sale transaction and accordingly a claim based on such transaction cannot be sustained.
In this regard, reliance was placed on the provisions of section 6 (1) of Cap 302 which require certain transactions in land under the Act to be supported by the Land Control Board consent of the local Land Control area/division in which the particular parcel of land is situated. It is also contended that since land control Board consent is a material fact in this whole transaction the same should have been pleaded. The defendant/applicant also contended that since there is no Replying Affidavit to the application, the defendant’s averment that no such consent was obtained remains uncontested.
3. That the plaint as drawn is incurably defective.
It is contended that the defects/deficiencies in the plaintiff’s plaint are not mere technicalities but that they go to the root of the plaintiff’s claim and that the suit should be dismissed.
10.The defendant/applicant relied on two (2) authorities namely Ndatho –vs- Itumo & 2 others [2002] 2 KLR 637 and Abubakar Herezo Bwana –vs- Twahir Mohamed Salim Said & 2 others [1991] 2 KAR 262. In the Ndatho case, the Court of Appeal held, inter alia, that “a claim to title by adverse possession is to be brought by way of an originating summons under order XXXVI Rule 3 (d) of the Civil Procedure Rules” and further that “a claim to title by virtue of adverse possession by way of a cross claim is misconceived.” In the Abubakar Herezo case, the Court of Appeal held, inter alia, that “While there existed jurisdiction under Order 36, r.10 of the Civil Procedure Rules to continue proceedings begun by originating summons as if they had been commenced by a plaint in an appropriate case, there did not exist any jurisdiction for the reverse procedure, that is to say to continue proceedings begun by plaint as though they were commenced by originating summons, even assuming such a course was appropriate in the instant case.”
11. In response to the defendant’s submissions, the plaintiff contends that he has been managing the suit land for over 50 years, during which time; the defendant/applicant was living in the settlement schemes. The plaintiff also concedes that no land control board consent was ever obtained since the defendant/ applicant who is a brother to the plaintiff refused to take the plaintiff to the area Land Control Board for consent. According to the plaintiff, he is asking for only 0.046 hectares out of the suit land. However, the plaintiff/respondent did not address the big issue of jurisdiction challenging his suit.
12. I have now carefully considered the application and the grounds in support thereof. I have also noted that though the plaintiff filed grounds of opposition to the application, he did not file a Replying Affidavit. I have also carefully considered the law and the issue that arises for determination is whether the plaintiff’s claim to title by adverse possession is properly before this court, having come by way of a plaint. It is my considered view that this claim by the plaintiff is not properly before this court because whether the claim was brought under the old or the new Civil Procedure Rules, the same ought to have come by way of Originating Summons upon which directions would then later be taken to convert the Originating Summons into a plaint for purposes of proceeding with the case.
13. It is not in dispute that the plaintiff’s claim against the defendant is in adverse possession. The plaintiff states variously that he has been in control possession and management of the suit land for over 20, 40 or 50 years. He also contends that he bought the suit land on or about 31st May 2008. If indeed he bought the suit land only on or about 31st May 2008, his claim for adverse possession in this case is obviously premature. There is therefore no reasonable cause of action in adverse possession.
14. Even if it were to be accepted that the plaintiff has had control, possession and management of the suit land for over 20, 40 or 50 years, the procedure adopted by him in bringing the claim by way of a plaint is obviously wrong and as was held in the Abubakar Hezero case (above), there is no jurisdiction by which these proceedings can be reversed so as to continue with the plaint herein as if it had begun by way of originating summons. For this reason which goes to the root of the plaintiff’s claim, the applicant’s application must succeed.
16. The Defendant/Applicant shall have the costs of this application.
17. It is so ordered.
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