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ELCDismissed· [2017] KEELC 3375 (KLR)

Rose Murewe Omware v Maricus Otieno Sewe & another [2017] KEELC 3375 (KLR)

Environment and Land Court
22 March 2017
SKS.M. Kibunja
1,562 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to strike out a land claim, ruling that conflicting official searches on title dates must be resolved with evidence, not arguments.

What this practically means

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Executive summary

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The 2nd Defendant, David Otieno Nyasio, raised a preliminary objection in the Environment and Land Court seeking striking out of the Plaintiff's suit over land parcel South Ugenya/Ruwe/83 on two grounds: that the suit was time barred under the Limitation of Actions Act, the 2nd Defendant having been registered as proprietor more than 12 years before filing, and that the Plaintiff lacked locus standi. The 1st Defendant, substituted for the deceased original 1st Defendant Joseph Onyunde Owino, supported the Plaintiff's capacity, asserting the land belonged to the clan. The Plaintiff countered that her official search showed registration on 2nd April 2003, not 1998, that her pleadings raised trust and fraud, and that no confirmed grant existed for the estate of the original registered proprietor. S.M. Kibunja J found the two documents from the Land Registrar bore conflicting registration dates, making it impossible to determine limitation as a point of law without evidence. On capacity, the pleadings required amendment to particularise trust and fraud. Holding that pleadings are struck out only in the clearest of cases, the court rejected the preliminary objection with costs in the cause, and on its own motion directed amendment of the plaint and corresponding amended defences, compliance with Order 11, and a mention before the Deputy Registrar.

Key legal issues

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01

Limitation - whether the suit to recover land was time barred

Holding

The court could not determine the limitation point because conflicting official search documents showed different registration dates (3rd April 1998 per the 2nd Defendant vs 2nd April 2003 per the Plaintiff's search); the issue must await evidence.

Reasoning

The 2nd Defendant relied on a title showing registration on 3rd April 1998, over 12 years before the plaint filed on 3rd January 2013. The Plaintiff's certificate of official search showed registration on 2nd April 2003, only about 10 years before filing. The court held it could not pronounce itself on limitation on conflicting documents.

p. 3
02

Locus standi - whether the Plaintiff had capacity to sue

Holding

The objection on locus standi failed; the claim was pleaded on trust and fraud, and no confirmed grant had been availed for the estate of the original registered proprietor, so the pleadings required amendment rather than striking out.

Reasoning

The suit was commenced when Joseph Onyunde Owino was alive; the Plaintiff's claim was pleaded on trust, and counsel alluded to fraud. No confirmed grant for the estate of Ayub Owino Rangila was availed by either side. The court considered amendment the appropriate remedy.

p. 3

Legal principles established

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  • Pleadings should only be struck out in the clearest of cases that cannot be sustained through amendments.

Court orders

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  1. 1.The 2nd Defendant's preliminary objection on the grounds of locus and limitation is without merit and is rejected with costs in the cause.
  2. 2.On the court's own motion, the Plaintiff to file and serve a further amended plaint within 21 days detailing the particulars of fraud and or trust, date of discovery of the fraud, if any, and the prayers sought.
  3. 3.Upon service of the further amended plaint, the Defendants to have corresponding leave to file and serve amended statements of defence as appropriate.
  4. 4.Parties to comply with Order 11 of the Civil Procedure Rules within the same timelines as the amended pleadings.
  5. 5.Matter to be mentioned before the Deputy Registrar to confirm compliance before a hearing date for the main suit is fixed.

Authorities

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Legislation

  • Limitation of Actions Act12-year limitation period for recovery of land (as argued)
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Environment and Land Court jurisdiction (Article 162(2)(b) not expressly cited in the ruling)

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, "Rose Murewe Omware v Maricus Otieno Sewe & another [2017] KEELC 3375 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3375/eng@2017-03-22

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