Surjit Singh & Malkiat Singh v Noor Mohammed Valji [2017] KEELC 2677 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.214 OF 2014

SURJIT SINGH................................................1ST APPLICANT

MALKIAT SINGH……………………………2ND APPLICANT

VERSUS

NOOR  MOHAMMED VALJI............................RESPODNENT

JUDGMENT

1. Surjit SinghandMarkiat Singh, the Applicants, filed the originating summons  dated 11th July 2014 seeking to be declared the registered owners of land parcel  L.R. 654/18through adverse possession and an order directing Noor Mohammed Valji, the  Respondent, to transfer the said land to them be issued  and in default the Deputy Registrar be authorized to effect the transfer.  The originating summons is based on six grounds marked (a) to (f) on its face and supported by the Applicants joint affidavit sworn on 16th July 2014 to the effect that they took physical possession of the suit  land in 1970 and have been using it for farming and operating a jaggery factory on it without any interruption for the last 44 years.

2. The originating summons was served through the press vide  Standard Newspaper  of 11th may 2015 and an  affidavit on service sworn by Mitchell J.B. Menezes on 24th May 2016 has been  filed.

3. The Respondent did not enter appearance and the matter was  listed for formal proof on the 27th July 2016 when counsel for the Applicants indicated that  they will rely on the affidavit evidence filed.  The learned counsel then filed written submission dated 23rd August 2016.  The learned counsel refered the court to the case of Mtana Lewa Kahidi Ngala   –V-  Mwagandi Malindi C.A. No.56 of  2014, Virginia Wanjiku Mwangi –V- Virginia Wanjiku Mwangi  ELC No. 86 of 2014, Article 64 and 40 of the Constitution, Sections 13, 37 and 38 of the Limitation of Actions Act Chapter 22 of Laws of Kenya and asked that  the land  be registered in the names of the Applicants.

4. That  the following are the issues for the court’s determination;

a) Whether the Respondent is the registered proprietor of the land parcel L.R. 654/18.

b) Whether the Applicants have been in adverse possession of the said land for more than 12 years continuously.

c) Whether the Respondent’s title to the land has been extinguished through prescription.

d) Whether the Applicants should be declared the owners of the said land and be registered as proprietors.

e) Who pays the costs.

5. The court has considered the grounds on the originating summons, the affidavit evidence by both Applicants, submissions by  their counsel and come to the following determinations;

a) That the provisions of Order 37 Rule 7 of Civil Procedure Rules requires the Applicant of a suit of this nature to file an extract of the register for the land subject matter of the originating summons with the supporting affidavit.  The Applicants have in an effort to comply  with this requirement attached a copy of an indenture made on the 28th April 1959, between Avalbhai wife of Alibhai Haji as vendor, and Noor Mohamed Valji  as purchaser over premise described as Plot number 654/18. They have also annexed another indenture of the same date between Alibhai Haji as mortgagee, and Alibhai Haji and Fatmabai Widow of Jiwa Walji as administrators over the said parcel of land.

b) That the copies of the indentures refered to in (a) above dated 28th April 1959, which is about 55 years to the date this originating summons  was filed does not  suffice for the purposes of Order 37 Rule 7 (2) of Civil Procedure Ruleswhich states;

“7…………………..

(2) the summons shall be supported by an affidavit  to which a certified extract of the title to the land in question has been annexed.”

c)      That further to the findings above, the requirement of a certified extract of the title is in the opinion of the court primarily meant to confirm to the court that the land subject matter of the originating summons is at the time of filing of the suit, in the name of the Respondent.  The copies of the indentures herein provided, not being certified extracts of the suit land from the Land registry, cannot be taken to be evidence that the person named as the proprietor on the documents dated 1959 was still the registered proprietor as of the time of filing of the suit.

d) That the court finds that the Applicants have failed to comply with the mandatory requirements of Order 37 Rule 7 (2) of Civil Procedure Rules as no certified extract of the suit land has been annexed to the supporting affidavit filed in support of  the originating summons.

6. That flowing from the foregoing, the court finds that the Applicants have failed to prove their case against the Respondent on a balance of probabilities and their suit, commenced through the originating summons dated 11th July 2014, is dismissed.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 21ST DAY OF JUNE 2017

In presence of;

Applicants  Absent

Respondent  Absent

Counsel                        Mr Maganga for the Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

21/6/2017

21/6/2016

S.M. Kibunja Judge

Oyugi court assistant

Parties absent

Mr. Maganga for the Plaintiff

Order: Judgment dated and delivered in open court in presence of Mr. Maganga for the Plaintiffs/Applicants.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

21/6/2017