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Court of AppealDismissedCivil Application No. NAI. 286 of 1999· [1999] KECA 111 (KLR)

Githurai Ting'ang'a Co. Ltd. v Moki Savings Co-operative Society Ltd. & 1 other

Court of Appeal
5 November 1999
862 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an adverse possession land claim must be filed by originating summons, not a plaint, or it will fail.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules by Githurai Ting'ang'a Co. Ltd., the unsuccessful plaintiff before Khamoni, J., who on 5 October 1999 dismissed its suit with costs in H.C.C.C. No. 2526 of 1991. The applicant sought an injunction pending an intended appeal, founded on a claim that it had acquired title to a 72-acre portion of L.R. 5964/1 by adverse possession. Counsel for the applicant, Mr Machira, argued several points, including a submission that an adverse possession claim could be brought by plaint where fraud or complexity was alleged, relying on Kibutiri v Kibutiri. The Court of Appeal held that none of the points argued mattered if the adverse possession claim was bad in law, and that it was: such a claim cannot be raised by plaint but must be commenced by Originating Summons in compliance with Order 36 rule 3D of the Civil Procedure Rules, following Bwana v Said. Kibutiri was said to be no authority for the contrary proposition. The court declined to express views on the other researched arguments, finding no compelling reason to do so. Since the underlying claim was hopeless and bound to fail, the first condition for an injunction - a claim likely to succeed - was not met, and the application was dismissed with costs. The decision binds lower courts on the mandatory originating summons procedure for adverse possession claims.

Key legal issues

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01

Procedure for raising a claim of adverse possession

Holding

A claim for adverse possession must be commenced by Originating Summons under Order 36 rule 3D of the Civil Procedure Rules and cannot be raised by plaint; the applicant's claim was therefore bad in law.

Reasoning

The court held that the applicant's adverse possession claim to 72 acres of L.R. 5964/1, pleaded in a plaint, was procedurally defective. Relying on Bwana v Said, it confirmed that Order 36 rule 3D mandatorily requires commencement by originating summons, and that Kibutiri v Kibutiri is no authority for a contrary position even where fraud or complexity is alleged. The claim was hopeless and bound to fail.

p. 1
02

Grant of injunction pending intended appeal under rule 5(2)(b)

Holding

The application failed because the applicant could not show that its claim, being procedurally hopeless, was likely to succeed - the first condition for an injunction was not satisfied.

Reasoning

The court declined to consider the other points argued by counsel since none arose once the adverse possession claim was bad in law. Because the underlying claim was hopeless and bound to fail, the applicant failed the threshold test of a claim likely to succeed, and the injunction application had to be dismissed on that ground alone.

p. 2

Legal principles established

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  • A claim for adverse possession cannot be raised by way of a plaint; it must be commenced by way of an Originating Summons in compliance with Order 36 rule 3D of the Civil Procedure Rules.
  • Compliance with Order 36 rule 3D of the Civil Procedure Rules is mandatory for an adverse possession claim.

Court orders

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  1. 1.The application for injunction is dismissed with costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2526 of 1991
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for injunction in an intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Githurai Ting'ang'a Co. Ltd. v Moki Savings Co-operative Society Ltd. & 1 other", Case Analysis (1999). Civil Application No. NAI. 286 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/111/eng@1999-11-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.