The Applicant in the originating summons dated 30.06.09 filed the same against the 2 Respondents claiming Title by way of Adverse possession. They annexed 2 copies of certificates of official search in place of extracts of Titles to the parcels of land in question. This prompted counsel for the Respondent to file the notice of motion dated 1.02.2010 where he is asking that the originating summons be struck out with costs. The Respondent to the application filed a replying Affidavit stating that he has complied with the law and the originating summons should not therefore be struck out.

        The law is very clear on this point and I will therefore be very precise.Order XXXVI Rule 3D(2) which is applicable in this case clearly states:-

The requirement is couched in mandatory terms. It has no place for certificates of search. The law requires a certified extract of Title to be annexed to the affidavit – not a certificate of official search. This position has been expounded in several Court of appeal decisions e.g. KYEYU VS OMUTO (Civil Appeal NO.8 of 1990) (unreported);

PATRICK ODAKO & ANOTHER VS WILLIAM KIREW (ALSO KISUMU COURT OF APPEAL 202 OF 1998) where the court of Appeal again stated:-

“Order 36 Rule 3D of the same Rules prescribes the manner for starting a suit for adverse possession …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”.