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1.The notice of motion dated 13th June, 2025 filed on even date, seeks the following orders:
i)Spent;
ii)That the proceedings herein be and are hereby continued as if the cause had been commenced by way of plaint, in accordance with Order 37 Rule 19 of the Civil Procedure Rules, 2010.
iii)That the amended originating summons dated 22 May, 2024 be deemed a plaint, and the affidavits filed in support thereof be deemed as pleadings and/or witness statements as appropriate, with liberty to the parties to file further pleadings or witness statements as may be necessary.
iv)That the defendant’s draft defence and counterclaim annexed to the supporting affidavit herein be admitted and be deemed as duly filed and served upon payment of the requisite court fees.
v)Pursuant to prayer no. 4 above, leave be granted to the parties to file and serve all pleadings, witness statements and supporting documents within sixty (60) days and to take all steps to comply with pre-trial procedures.
vi)Any other orders that this court may deem fit in the interest of justice.
vii)Costs of this application be provided for.
2.The application is anchored on the grounds on its face and supporting affidavit of Baruti Bundi, the applicant herein, sworn on 13th June, 2025. He deposes that the proceedings herein were commenced by originating summons and due to the complexity of the dispute, a conversion of the suit is necessary for fair adjudication of the matter. He avers that his proposed counterclaim raises serious questions of title, possession and occupation which are arguable issues with high chances of success. It is his contention that determination of such claims will require oral evidence, production of documents and cross examination of witnesses.
3.He deposes that he is the registered owner of the suit property and the respondents continued occupation, amounts to trespass; that despite challenging the respondents occupation of the suit property and engaging them in mediation, the respondents have continued to occupy the suit property unlawfully therefore necessitating filing of the counterclaim in which he seeks orders of eviction, permanent injunction and damages for trespass against the respondents.
4.In opposition, the respondents filed grounds of opposition dated 23rd June, 2025 filed on 8th July, 2025. They stated that the application is devoid of merit as the applicant is seeking to introduce a distinct cause of action being eviction and trespass whilst the respondents seek ownership of the suit property through adverse possession; that there is no provision for raising counter-claims in claims for adverse possession; that the application is res judicata in view of the directions given on 22nd May, 2024 and 22nd May, 2025.
5.In a rejoinder, the applicant filed a further affidavit on 2nd July, 2025 and deponed that the application is not res judicata as the order sought about his draft defence and counterclaim had not been determined; that the respondents will not suffer any prejudice if the draft defence and counterclaim which raise substantive and triable issues that go to the heart of the dispute are admitted.
6.Pursuant to directions given on 10th July, 2025 the application was argued orally.
7.The applicant submitted that his draft defence and counterclaim should be admitted because adverse possession and trespass go hand in hand. He relied on the cases of Joseph v Kisau (Environment & Land Case117 of 2018) [2024], Khasian v Grove Development Limited (Land Case 254 of 2022) [2023] and Mukesh Manchand Shah & another v Priyat Shah & another [2015].
8.In reply, the respondents submitted that the application is res judicata following the directions issued by the court on 22nd May 2024 & 25th May, 2025. He submitted that it is not necessary to file a defence and counterclaim because the issues of trespass are contained in paragraphs 6-15 of his replying affidavit; that the applicant seeks to introduce a new cause of action in the nature of trespass and eviction, while the issue before the court is whether the respondents have established ownership through adverse possession.
9.I have considered the application, the grounds for and in opposition, oral submissions and the law. I find the issue for determination to be whether a defence and counterclaim can be filed in an originating summons.
10.On 21st May, 2024 the following directions were allowed by consent regarding the originating summons; “ The O.S is converted to a plaint and the R.A to a defence. The O.S will be heard by way of viva voce evidence. Parties to comply with Order 11 within 45 days…..”
11.Further directions were given on the 22nd May, 2025 thus; “General leave of 21 days is granted to the parties to exchange further list of documents and witness statements.
12.From the above directions given on 21st May, 2024 and 22nd May 2025, it is clear that all other prayers sought in the application have been dealt with except prayer 4 which seeks an order that the defendant’s draft defence and counterclaim annexed to the supporting affidavit be deemed as duly filed and served upon payment of the requisite court fees.
13.Section 38 (1) of Limitation of Actions Act, Cap 22 provides;
(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.’’
Order 37 rule 7 of the Civil Procedure Rules provides;
(1)An application under section 38 of the Limitation of Actions Act (Cap. 22) shall be made by originating summons. (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. (3)The court shall direct on whom and in what manner the summons shall be served.
Order 37, rule 19 provides;
(1)Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits.(2)Where the court makes an order under subrule (1), Order 11 shall apply. (3)This rule applies notwithstanding that the cause could not have been begun by filing a plaint.(4) Any reference in these Rules to proceedings begun by a plaint shall, unless the context otherwise requires, be construed as including a reference to a cause proceeding under an order made under subrule (1).
14.In the instant suit, the applicants moved the court through an originating summons under the limitation of Actions Act and Order 37 of the Civil Procedure Rules. Upon service, the respondent filed a replying affidavit. The pleadings filed were converted to a plaint and defence in accordance with Rule 19 of the Civil Procedure rules. The proceedings were to continue as if the cause had began as a plaint and the affidavits were to stand as pleadings. In other words, the originating summons became a plaint and the replying affidavit became a defence. Parties were directed to file witness statements and documents in compliance with Order 11 of the Civil Procedure Rules.
15.My understanding of Order 37 of the Civil Procedure Rules is that having converted the replying affidavit to a defence, the respondent, now defendant, has a defence on record. If the respondent, now defendant, wishes to make any additions, he should do so by filing a further affidavit not a defence and counterclaim.
16.Consequently, I find the application devoid of merit and l dismiss it with costs to the respondents.
17.Orders accordingly.
Dated, signed and delivered virtually at Kabarnet this 6th day of October, 2025.
Ruling read virtually in the presence of;-
Mr. Kibii for the Applicant/Respondent.
Mr. Mugambi for the Respondent/Applicant
Court Assistant: Ian
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1.The notice of motion dated 13th June, 2025 filed on even date, seeks the following orders:
i)Spent;
ii)That the proceedings herein be and are hereby continued as if the cause had been commenced by way of plaint, in accordance with Order 37 Rule 19 of the Civil Procedure Rules, 2010.
iii)That the amended originating summons dated 22 May, 2024 be deemed a plaint, and the affidavits filed in support thereof be deemed as pleadings and/or witness statements as appropriate, with liberty to the parties to file further pleadings or witness statements as may be necessary.
iv)That the defendant’s draft defence and counterclaim annexed to the supporting affidavit herein be admitted and be deemed as duly filed and served upon payment of the requisite court fees.
v)Pursuant to prayer no. 4 above, leave be granted to the parties to file and serve all pleadings, witness statements and supporting documents within sixty (60) days and to take all steps to comply with pre-trial procedures.
vi)Any other orders that this court may deem fit in the interest of justice.
vii)Costs of this application be provided for.
2.The application is anchored on the grounds on its face and supporting affidavit of Baruti Bundi, the applicant herein, sworn on 13th June, 2025. He deposes that the proceedings herein were commenced by originating summons and due to the complexity of the dispute, a conversion of the suit is necessary for fair adjudication of the matter. He avers that his proposed counterclaim raises serious questions of title, possession and occupation which are arguable issues with high chances of success. It is his contention that determination of such claims will require oral evidence, production of documents and cross examination of witnesses.
3.He deposes that he is the registered owner of the suit property and the respondents continued occupation, amounts to trespass; that despite challenging the respondents occupation of the suit property and engaging them in mediation, the respondents have continued to occupy the suit property unlawfully therefore necessitating filing of the counterclaim in which he seeks orders of eviction, permanent injunction and damages for trespass against the respondents.
4.In opposition, the respondents filed grounds of opposition dated 23rd June, 2025 filed on 8th July, 2025. They stated that the application is devoid of merit as the applicant is seeking to introduce a distinct cause of action being eviction and trespass whilst the respondents seek ownership of the suit property through adverse possession; that there is no provision for raising counter-claims in claims for adverse possession; that the application is res judicata in view of the directions given on 22nd May, 2024 and 22nd May, 2025.
5.In a rejoinder, the applicant filed a further affidavit on 2nd July, 2025 and deponed that the application is not res judicata as the order sought about his draft defence and counterclaim had not been determined; that the respondents will not suffer any prejudice if the draft defence and counterclaim which raise substantive and triable issues that go to the heart of the dispute are admitted.
6.Pursuant to directions given on 10th July, 2025 the application was argued orally.
7.The applicant submitted that his draft defence and counterclaim should be admitted because adverse possession and trespass go hand in hand. He relied on the cases of Joseph v Kisau (Environment & Land Case117 of 2018) [2024], Khasian v Grove Development Limited (Land Case 254 of 2022) [2023] and Mukesh Manchand Shah & another v Priyat Shah & another [2015].
8.In reply, the respondents submitted that the application is res judicata following the directions issued by the court on 22nd May 2024 & 25th May, 2025. He submitted that it is not necessary to file a defence and counterclaim because the issues of trespass are contained in paragraphs 6-15 of his replying affidavit; that the applicant seeks to introduce a new cause of action in the nature of trespass and eviction, while the issue before the court is whether the respondents have established ownership through adverse possession.
9.I have considered the application, the grounds for and in opposition, oral submissions and the law. I find the issue for determination to be whether a defence and counterclaim can be filed in an originating summons.
10.On 21st May, 2024 the following directions were allowed by consent regarding the originating summons; “ The O.S is converted to a plaint and the R.A to a defence. The O.S will be heard by way of viva voce evidence. Parties to comply with Order 11 within 45 days…..”
11.Further directions were given on the 22nd May, 2025 thus; “General leave of 21 days is granted to the parties to exchange further list of documents and witness statements.
12.From the above directions given on 21st May, 2024 and 22nd May 2025, it is clear that all other prayers sought in the application have been dealt with except prayer 4 which seeks an order that the defendant’s draft defence and counterclaim annexed to the supporting affidavit be deemed as duly filed and served upon payment of the requisite court fees.
13.Section 38 (1) of Limitation of Actions Act, Cap 22 provides;
(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.’’
Order 37 rule 7 of the Civil Procedure Rules provides;
(1)An application under section 38 of the Limitation of Actions Act (Cap. 22) shall be made by originating summons. (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. (3)The court shall direct on whom and in what manner the summons shall be served.
Order 37, rule 19 provides;
(1)Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits.(2)Where the court makes an order under subrule (1), Order 11 shall apply. (3)This rule applies notwithstanding that the cause could not have been begun by filing a plaint.(4) Any reference in these Rules to proceedings begun by a plaint shall, unless the context otherwise requires, be construed as including a reference to a cause proceeding under an order made under subrule (1).
14.In the instant suit, the applicants moved the court through an originating summons under the limitation of Actions Act and Order 37 of the Civil Procedure Rules. Upon service, the respondent filed a replying affidavit. The pleadings filed were converted to a plaint and defence in accordance with Rule 19 of the Civil Procedure rules. The proceedings were to continue as if the cause had began as a plaint and the affidavits were to stand as pleadings. In other words, the originating summons became a plaint and the replying affidavit became a defence. Parties were directed to file witness statements and documents in compliance with Order 11 of the Civil Procedure Rules.
15.My understanding of Order 37 of the Civil Procedure Rules is that having converted the replying affidavit to a defence, the respondent, now defendant, has a defence on record. If the respondent, now defendant, wishes to make any additions, he should do so by filing a further affidavit not a defence and counterclaim.
16.Consequently, I find the application devoid of merit and l dismiss it with costs to the respondents.
17.Orders accordingly.
Dated, signed and delivered virtually at Kabarnet this 6th day of October, 2025.
Ruling read virtually in the presence of;-
Mr. Kibii for the Applicant/Respondent.
Mr. Mugambi for the Respondent/Applicant
Court Assistant: Ian
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