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Patrick A. Odako & Meshack O. Odako v. William N. Kirew

(2000) JELR 96767 (CA)

Court of Appeal  •  Civil Appeal 262 of 1998  •  24 Mar 2000  •  Kenya

Riaga Samuel Cornelius Omolo, Samuel Elikana Ondari Bosire, Emmanuel Okello O'Kubasu



Order IV rule 1 of the Civil Procedure Rules provides that:

“Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.”

That means that the usual way of starting suits is by way of a plaint but there are also other ways which can be prescribed for starting suits.

Order 36 rule 3D of the same rules prescribes the manner for starting a suit for adverse possession under section 38 of the Limitation of Actions Act, cap 22 Laws of Kenya. Such a claim is to be started by way of an originating summons supported by an affidavit and a copy of the title to the land adversely claimed has to be annexed to the affidavit.

Order 36 rule 3D (1) is mandatory in that it is to the effect that:

“.....shall be made by originating summons.”

Various decisions of this Court, among them Bwana v. Said [1991] 2 KAR 262 to which we have been referred, specifically lays it down that a claim for adverse possession must be started by an originat…

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