Gladys Koskey v Benjamin Mutai [2017] KEELC 3463 (KLR)
The bottom line
#A Kericho court refused to strike out a widow's land trespass case, ruling that continuing trespass is not time-barred and ownership disputes need a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the trespass claim is statute barred under section 4 of the Limitation of Actions Act
The claim is not time barred because the trespass alleged is continuous, creating a fresh cause of action each day
Trespass is a tort normally subject to the three-year limitation period in section 4 of the Limitation of Actions Act. However, the Plaint alleges continuing trespass, and the Court of Appeal in Nguruman Limited v Shompole Group Ranch, citing Clerk and Lindsell on Torts, held that every continuance of a trespass is a fresh trespass giving a new cause of action. The limitation defence therefore does not apply.
Whether the Plaintiff has locus standi
The Plaintiff's description of herself in the plaint as widow, administrator, personal representative and beneficial owner of the estate is adequate, conferring locus standi
The Plaintiff described herself in the heading and paragraph 3 of the plaint as the widow, administrator, personal representative and beneficial owner of the estate of the deceased, and attached a grant of letters of administration. Locus standi is a question of law to be resolved on a priority basis, but the applicant's objection was held to be a matter of semantics rather than a genuine defect.
Whether the suit property forms part of the deceased's estate
The question of ownership of the suit land is a triable issue that can only be determined at full trial
Although the title was issued on 3rd August 2005 after the deceased's death on 13th May 2005, the court took judicial notice that land titling takes time and that the absence of formal title does not displace ownership by a person who validly acquired the land. Whether the property was free property available for distribution under the Law of Succession Act lies at the core of the suit and requires a full trial.
Whether the plaint discloses no cause of action and should be struck out
The plaint raises triable issues; the striking-out application is unmerited
Applying the principles in DT Dobie & Company (Kenya) Ltd v Muchina and Crescent Construction Co Ltd v Delphis Bank Ltd, the power to strike out pleadings is discretionary and must be exercised with the greatest care and caution. A court should aim at sustaining rather than terminating a suit, and should not dismiss a suit that shows a semblance of a cause of action unless it is hopeless and incurable by amendment. The plaint here raises triable issues requiring a full hearing.
Legal principles established
#- Continuing trespass gives rise to a fresh cause of action from day to day, so the limitation period does not bar a suit on a continuing trespass
- A suit should not be summarily dismissed unless it plainly and obviously discloses no reasonable cause of action and is incurable by amendment
- The absence of a formal title does not mean a person who has validly acquired land is not the true owner
Court orders
#- 1.The Defendant's Notice of Motion dated 6th September 2016 seeking to strike out the Plaint is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction; application under Sections 1A, 1B, 3A of the Civil Procedure Act and Order 2 Rule 15, Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gladys Koskey v Benjamin Mutai [2017] KEELC 3463 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3463/eng@2017-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.