Meshack Nyamberi & 60 Others v Serah Katumbi Mulwa & 4 others [2017] KEELC 1693 (KLR)

Section 7 bars actions for recovery of land after twelve years. The Plaintiffs bought plots between 1997 and 2003, took possession and developed the land, and were never stopped by the vendors or Defendants Nos. 1-3. The pleadings do not show any repudiation of the agreements, so the accrual date of the cause of action cannot be fixed without interrogating the circumstances at trial.

The vendors sold beneficial interests while holding only allotment letters, the land being held by Lukenya F.C.S Ltd and in the name of the Government. Section 6(3) of the Land Control Act exempts Government transactions. Whether the agreements became subject to the Act after the land left Government hands must be interrogated at trial with all parties' agreements.

Defendants Nos. 1-3 impugned the agreements for want of signature by Serah Kalumbi Mulwa and reliance on District Co-operative Union Ltd vs. Philip Nzuki Kiilu. The court found that the two agreements dated 10th July 1997 and 18th November 1997 appear on their face to be executed by the parties and witnessed as the law requires, making striking out unsafe.

The Plaintiffs are in occupation and have extensively developed the land, yet their interests were not taken into account when the suit land was transferred to the 5th Defendant. The 4th Defendant's interests were also seemingly ignored despite Defendants Nos. 1-3 having knowledge of them. The court will hear the parties on the validity of the transfer.

The Plaintiffs and 4th Defendant invoked Mukisa Biscuit Manufacturing Ltd vs. Westend Distributers, arguing the objection raised matters of both law and fact. The court agreed the issues of limitation, consent, contract validity and privity require evidential interrogation, so it was not safe to strike out the suit without hearing the parties.