Charles Angucho Suchia v Elephas Nyambaka Cosma [2014] KEHC 5732 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CIVIL   CASE NO. 123  OF 2010

CHARLES ANGUCHO SUCHIA …..................  PLAINTIFF/APPLICANT

VERSUS ELEPHAS NYAMBAKA COSMA ..............DEFENDANT/RESPONDENT

RULING

1. The Respondent has moved the court in his application dated  14. 4.2011 brought under Order 2 Rule 15(1) (a), Order 51 Rule 1 of  the Civil Procedure Rules seeking; (a). That the Applicant's suit be struck out. (b). The Applicant Charles Suchia be ordered to pay the costs of the   application and  entire suit.

2. The Respondent contends the suit discloses no reasonable cause of  action since the Applicant has been in possession of the land  with  the Respondents permission and cannot  qualify to be an adverse  possessor.  Finally that the Applicant has not established  through his  pleadings that  the Respondent  has been dispossessed for the  statutory period. 3. The Applicant opposed the application by filing a replying affidavit. He depones his suit raises a reasonable cause of action as he has been in occupation of the suit land for a period of over 12 years. 4. Both parties asked the court to look at the pleadings as filed  (Application and replying affidavit) and make a finding.  The court  has considered those pleadings filed.  A suit commenced by way of  originating summons for adverse possession requires evidence to be  adduced to establish whether the Applicant's possession was  adverse to the rights of the title holder (Respondent).  You cannot by  reading the pleadings only arrive at a decision whether occupation  was by permission or not. Secondly, evidence is required to be led  when time is considered to have begun running.  In light of the  foregoing, the  present application seeking to strike out the suit is  therefore  premature. In any event under Order 2 Rule 15 (1) no  evidence  must be adduced in seeking to strike out suit.  Yet grounds (a), (b)  and (c) of the Motion require evidence to confirm the  facts set out  in the grounds. 5. Consequently I find this application as premature and lacking in  merit. I hereby dismiss it with costs to Charles Angucho Suchia. DATED, SIGNED and DELIVERED this  20th     day of March  2014

A. OMOLLO   JUDGE