Benina Wairimu Kabui v John Kinyua Kabui & another [2016] KEELC 339 (KLR)
The bottom line
#A Kenyan court confirmed that family land trust claims cannot be thrown out simply because years have passed since the land was registered.
What this practically means
#Executive summary
#Key legal issues
#Whether limitation bars a claim of customary trust
No; Section 20(1) of the Limitation of Actions Act exempts actions by a beneficiary under a trust, and customary trust claims are not defeated by Section 7
The plaint premised the cause of action on the defendants holding the suit land in trust for the family, an essentially customary trust claim. Section 20(1) excludes limitation periods for actions by beneficiaries to recover trust property. The Court of Appeal in Macharia Kihari confirmed that limitation does not apply to customary law trusts, and Stephens v Stephens held no limitation plea is available to a fiduciary who abuses trust. Whether the trust exists is a matter for trial evidence, but the pleadings establish the claim is trust-based and thus not statute-barred.
Whether the suit is res judicata given prior Tribunal cases and the Embu High Court judicial review application
Res judicata does not apply because the issue of trust was never heard and finally determined in the previous cases
For res judicata, the matter must be substantially the same and must have been heard and finally determined. Although the same parties litigated over the suit land in the Land Disputes Tribunal cases, none involved the trust claim now raised. Wanjiru Karanja J in the Embu judicial review expressly noted the Tribunal did not determine trust and directed that such a suit be filed before a competent court. That is precisely what the plaintiff has done, so res judicata does not apply.
Whether the preliminary objection was a proper preliminary objection
Yes; the plea of limitation is a pure point of law as defined in Mukisa Biscuit
Relying on Law J.A's definition in Mukisa Biscuit, the court held that a plea of limitation is a point of law which may dispose of the suit and therefore constitutes a proper preliminary objection, though ultimately it failed on the merits because of the trust exemption.
Legal principles established
#- A claim under customary trust is not defeated by the limitation period under Section 7 of the Limitation of Actions Act, by virtue of Section 20(1) of the same Act
- Res judicata does not apply where the issue of trust was never determined in the former suits, even if the parties and the land were the same
- A court may raise the issue of res judicata suo motu since it goes to jurisdiction
Court orders
#- 1.The defendants' Preliminary Objection dated 2nd February 2016 is dismissed with costs
- 2.The parties and their counsel are advised to agree on a consent on the pending Notice of Motion of 15th November 2013 so as to expedite the pre-trial process
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over trust and title to land; preliminary objection under Section 7 of the Limitation of Actions Act and Section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Benina Wairimu Kabui v John Kinyua Kabui & another [2016] KEELC 339 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/339/eng@2016-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.