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ELCStruck OutE.L.C Case No. 49 of 2015· [2017] KEELC 3266 (KLR)

Erick Kipkemboi v Unilver (Kenya Limited) & 2 others [2017] KEELC 3266 (KLR)

Environment and Land Court
16 March 2017
2,572 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (Onyango J) determined a notice of motion dated 3rd June 2016 by the 1st Defendant, Unilever (Kenya) Limited, under Order 2 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking striking out of the plaintiff's suit on the grounds that it disclosed no reasonable cause of action, was scandalous, frivolous and vexatious, and would prejudice, embarrass or delay fair trial. The plaintiff, administrator of the estate of James Cheriro, claimed the 1st Defendant fraudulently created entry no. 8 in the register of L.R No. 6026 and reduced the acreage, extinguishing the rights of Paraiywot & Partners Company. The court framed three issues: whether the suit disclosed a reasonable cause of action or was scandalous and vexatious; whether the plaintiff had locus standi; and whether the suit was time barred. On the first issue, the transfer document showed the partnership purchased only 134 acres, not the entire 794, so the fraud allegation was unfounded. On the second, the land was registered to numerous partners trading as an unregistered partnership and could not form part of James Cheriro's estate; the plaintiff lacked authority of the other partners. On the third, the claim filed in 2015, forty years after the 1975 transfer, was barred by Section 7 of the Limitation of Actions Act. Guided by the D.T. Dobie principles, the court dismissed the plaintiff's case with costs, observing that a fresh suit with the requisite consents and leave for extension of time remained open.

Key legal issues

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01

Whether the plaint disclosed a reasonable cause of action or was scandalous, frivolous and vexatious

Holding

The claim of fraud was unfounded because the transfer document showed Paraiywot & Partners Company purchased only 134 acres, not the entire 794 acres, so the alleged fraudulent entry was based on an erroneous impression

Reasoning

The court examined the transfer document dated 31st December 1974 attached to the plaint and found it showed purchase of a portion measuring 54.22 hectares (134 acres), not the whole parcel. The plaintiff's allegation that entry no. 8 fraudulently extinguished rights over the entire title was therefore a misrepresentation of the facts and unfounded, and the alleged fraud was scandalous and without foundation.

p. 4
02

Whether the Plaintiff had locus standi to sue on behalf of Paraiywot & Partners Company

Holding

The Plaintiff had no capacity to sue on behalf of the unregistered partnership without the authority of the other partners or their legal representatives

Reasoning

The land was transferred to numerous persons trading as Paraiywot & Partners Company, an unregistered partnership, not to James Cheriro alone. The rectified certificate of confirmation of grant wrongly indicated the land formed part of James Cheriro's estate. A suit on behalf of the partnership required the authority of the other partners or their legal representatives, which was not obtained.

p. 4
03

Whether the suit was time barred

Holding

The suit filed in 2015, forty years after the 1975 transfer, was statute-barred under Section 7 of the Limitation of Actions Act

Reasoning

The cause of action, if any, arose in 1975 when the land was transferred and registered in the names of the partners while the plaintiff's father was still alive. Section 7 of the Limitation of Actions Act requires claims to land to be brought within twelve years. The suit filed in 2015 was forty years late and hopelessly out of time.

p. 4

Legal principles established

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  • A court should exercise the power to strike out pleadings with the greatest care and caution, and should not summarily dismiss a suit unless it is plainly and obviously unarguable and incurable by amendment
  • A suit to recover land must be brought within twelve years under Section 7 of the Limitation of Actions Act

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure ActSection 3A
  • Limitation of Actions ActSection 7 (Cap 22)

Cases cited (8)

  • Willis Vs Earl Beauchamp
    (1866)
  • Strokes Vs Grant
    (1878) AC 345
  • Hardnorb Vs Monk
    (1876) 1 Ex D 367
  • Elijah Sikona & George Pariken Narok on behalf of Trusted Society of Human Rights Vs Mara Conservancy and 5 Others
    (2014) KLR
  • Trust Bank Ltd Vs Hemanshusirkat Amin & Co Ltd & Another
    Nrb HCCC No. 984 of 1999
  • Nyati (2002) Kenya Limited Vs Kenya Revenue Authority
    2009 KLR
  • D. T Dobie & Company (Kenya) Ltd Vs Muchina
    1982 KLR 1
  • Crescent Construction Co. Ltd vs Delphis Bank Ltd
    Civil Appeal No.146 of 2001
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 2 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Erick Kipkemboi v Unilver (Kenya Limited) & 2 others [2017] KEELC 3266 (KLR)", Case Analysis (2017). E.L.C Case No. 49 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3266/eng@2017-03-16

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