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ELCDismissedOriginating Summons dated 1/2/2013· [2017] KEELC 629 (KLR)

Annah Cheptum Cherige v David Kipkurui Koech & 4 others [2017] KEELC 629 (KLR)

Environment and Land Court
20 December 2017
MNMwangi Njoroge
3,466 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale dismissed a family's claim that four plots were held in trust for a deceased man's estate, because the claim was filed too late and lacked evidence.

What this practically means

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Executive summary

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The plaintiff, administratrix of the estate of the late Richard Kipsugut Cherige, brought an Originating Summons dated 1/2/2013 seeking declarations that the defendants hold Plots Kaplamai/Kachibora Block 7 (Motosiet) 333, 374, 375 and 376 in trust for the estate and an order that they transfer the plots to her, together with a temporary injunction. Her case was that the deceased, a member of Motosiet Farm, purchased 5 acres in 1972, obtained County Council of Trans-Nzoia approval to convert the land into a trading centre, and subdivided it into 20 plots; after his death in 2005 the defendants allegedly secretly altered plot numbers and registered themselves as owners. The defendants denied any nexus between the deceased and the plots, asserting their titles arose from a first registration in 1994, that the deceased had sold his share, and that the claim was time barred; they also pointed to related suits, Kitale HCCC No. 32 of 2012 and No. 91 of 2010. The court framed three issues: trust, limitation, and appropriate orders. It found the plaintiff had failed to identify the deceased's plot number or to show how and when the disputed plots were carved out of it, and could not establish a nexus; it therefore declined to find a trust. It further held the claim statutorily time barred under Section 7 of the Limitation of Actions Act, the cause of action having accrued in 1994. The court observed that both sides failed to illuminate the acquisition process and lamented the tragic history, but dismissed the suit with each party bearing its own costs.

Key legal issues

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01

Whether the defendants hold Plots 333, 374, 375 and 376 in trust for the estate of the deceased

Holding

No; the plaintiff failed to prove the parcels were hived off from the deceased's parcel 166 or to establish any nexus, so no trust arises

Reasoning

The plaintiff's pleadings and evidence failed to identify the plot number owned by the deceased and how and when the disputed plots were carved out of it. Plot No. 166 remains in existence in the Government's name, reserved for Motosiet Market. The Originating Summons and supporting affidavit mixed up the plots registered in the defendants' names and the market plot, leaving the nexus unproven on a balance of probabilities.

p. 5
02

Whether the claim is time barred under the Limitation of Actions Act

Holding

Yes; the cause of action accrued in 1994 upon issuance of the final area list and titles, and more than twelve years elapsed before suit

Reasoning

Section 7 of the Limitation of Actions Act Cap 22 bars actions to recover land after twelve years from accrual. The defendants' titles were first registrations issued in 1994, and there was no evidence of their interference with the plots before that year. The plaintiff filed suit in 2013, nineteen years after accrual, and the delay was unexplained, so the claim is statutorily time barred.

p. 5

Legal principles established

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  • A claim to recover land must be brought within twelve years of accrual of the right of action under Section 7 of the Limitation of Actions Act
  • A party asserting a trust arising from hiving off of parcels must establish a nexus between the disputed parcels and the land alleged to have been held for them

Court orders

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  1. 1.The plaintiff's case is dismissed
  2. 2.Each party shall bear its own costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
Jurisdiction invoked
Original jurisdiction over trust and land disputes; relief sought by Originating Summons under the law of trust in land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Annah Cheptum Cherige v David Kipkurui Koech & 4 others [2017] KEELC 629 (KLR)", Case Analysis (2017). Originating Summons dated 1/2/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/629/eng@2017-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.