Wesley Kipyegon Bor & 8 others v Richard Pares & 3 others [2020] KEELC 2586 (KLR)
The bottom line
#Nine land claimants lost their adverse possession case in Kericho because they failed to attach a certified extract of the land title to their court documents.
What this practically means
#Executive summary
#Key legal issues
#Whether the prior interlocutory rulings rendered the annexation issue res judicata
Res judicata does not apply because the issue was previously raised in the context of interlocutory applications, not as a preliminary objection addressing the suit
The court distinguished the earlier rulings where the annexation issue arose as a response to applications for restraining orders. Since the context, purpose and intended outcome of the present preliminary objection differ - it targets the suit itself for determination in limine - the doctrine of res judicata is not attracted.
Whether annexation of a certified extract of title under Order 37 rule 7(2) is mandatory
Yes - the requirement is mandatory and its omission is a fact not in dispute and a pure point of law
The court reasoned that the certified extract confirms that the correct registered owner has been sued and that the land still exists as a legal entity; otherwise proceedings would be futile or could condemn unheard third parties who now hold subdivided portions.
Whether the non-existence of the suit title is a matter of fact unsuitable for preliminary objection
It is a matter of law; a title is a legal document created and extinguished through legal processes
The court held that the creation, existence and non-existence of a title are matters of law because a title is a legal document created through a legal process. The plaintiffs supplied no evidence suggesting the title existed, so there was no disputed factual matrix requiring ascertainment.
Legal principles established
#- An originating summons for adverse possession must be supported by an affidavit to which a certified extract of the title to the land is annexed, and failure to do so is fatal
- Adverse possession proceedings can only be maintained against the title holder or current registered owner of the suit land
Court orders
#- 1.The preliminary objection raised by the 1st and 2nd defendants is upheld
- 2.The plaintiffs' originating summons is struck out
- 3.The 1st and 2nd defendants are awarded costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Order 37 rule 7(2) of the Civil Procedure Rules, 2010 (adverse possession suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wesley Kipyegon Bor & 8 others v Richard Pares & 3 others [2020] KEELC 2586 (KLR)", Case Analysis (2020). Originating Summons dated 3rd May, 2018 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2586/eng@2020-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.