Erick Kipkemboi v Unilver (Kenya Limited) & 2 others [2017] KEELC 3266 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaint disclosed a reasonable cause of action or was scandalous, frivolous and vexatious
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
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.
Whether the Plaintiff had locus standi to sue on behalf of Paraiywot & Partners Company
The Plaintiff had no capacity to sue on behalf of the unregistered partnership without the authority of the other partners or their legal representatives
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.
Whether the suit was time barred
The suit filed in 2015, forty years after the 1975 transfer, was statute-barred under Section 7 of the Limitation of Actions Act
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.
Legal principles established
#- 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
#- 1.The Plaintiff's suit is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.