Makunyi Rwanda v Ruth Karauki Ayub (Environment & Land Case 214 of 2017) [2018] KEELC 514 (KLR)
The bottom line
#The Environment and Land Court dismissed an uncle's greedy claim to his niece's land, awarding her damages, mesne profits, and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff has any legitimate claim over L.R. No. 2788
The plaintiff's claim is dismissed; the original parcel was ancestral land registered to his mother, whose four children all had equal entitlement, and the plaintiff and his two wives already took three of the four subdivisions
The court found that L.R. No. 218 was originally registered to Nkungu Rwanda, mother of the plaintiff and grandmother of the defendant, and that all four children had equal birth right to the property. Upon subdivision in 2010, the plaintiff and his two wives received three portions while the defendant retained her late mother's portion. The plaintiff, having taken three quarters of the original parcel, could not claim the defendant's retained portion; his sole-heir claim was found lame, greedy and an attempt to unjustly enrich himself.
Whether the plaint discloses a reasonable cause of action
It does not; the alleged fraud would have to implicate the Land Control Board and Land Registrar, who were not parties, rendering the claim fatally defective and an abuse of process
Relying on the defendant's grounds of opposition and Order 2 Rule 15(1)(a), the court accepted that the particulars of fraud necessarily involved the Land Control Board and the Land Registrar, neither of whom was joined as a party. Without them, no cause of action against the defendant alone was disclosed, making the plaint defective and an abuse of the court's process meriting dismissal.
Whether the suit is barred by the statute of limitation
Yes; the transfer to the defendant occurred in 1992 and the suit was filed in 2013, twenty-one years later, beyond the six-year limit applicable to trust property claims
The court found the defendant was registered as owner of the original parcel No. 218 in 1992 and the suit was filed in 2013. Citing sections 20(1) and 20(2) of the Limitation of Actions Act, the defendant argued that claims concerning trust property are barred after six years. The court agreed the suit was barred at inception and merited striking out on this account.
Whether the defendant is entitled to the prayers in the counter-claim
Yes; the unopposed counter-claim succeeded, with a permanent injunction, special damages of Kshs.10,900/= and mesne profits of Kshs.100,000/= awarded
The plaintiff did not impeach the integrity of the defendant's evidence or challenge the counter-claim in cross-examination or submissions. The agricultural officer's damage assessment proved loss of Kshs.10,900/= from the plaintiff's trespass and destruction of fencing and trees. The court also found the plaintiff had been leasing out the suit land and awarded mesne profits, together with a permanent injunction protecting the defendant's exclusive possession.
Legal principles established
#- A plaint that alleges fraud against parties such as the Land Control Board and Land Registrar who are not joined does not disclose a reasonable cause of action and is an abuse of process
- A claim over trust property is barred after expiry of six years under the Limitation of Actions Act
- A person solely and absolutely registered as owner of land is entitled to exclusive use, occupation and possession of it
Court orders
#- 1.This suit is dismissed.
- 2.An order of permanent injunction barring the plaintiff, Makunyi Rwanda, from trespassing upon, entering or in any other way dealing with L.R. Nos. S. THARAKA/TUNYAI 'A'/2788.
- 3.A sum of Kenya shillings ten thousand nine hundred (Kshs.10,900/=) plus interest at court rates until full payment being special damages as assessed by an agricultural officer's report is to be paid to the defendant from the date of delivery of the judgment.
- 4.The plaintiff is ordered to pay the sum of Kshs.100,000/= being mesne profits for the period of time he has been leasing out L.R. NO. S. THARAKA/TUNYAI 'A'/2788 with interest at court rates from the date of delivery of the judgment.
- 5.Costs for the plaintiff's suit and for the defendant's counter-claim are awarded to the defendant with interest at 14% per annum from the date of delivery of the judgment.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcels within Tharaka Nithi County (suit transferred from Meru ELC Case No. 137 of 2013 to Chuka ELC Case No. 214 of 2017 as the court with territorial jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makunyi Rwanda v Ruth Karauki Ayub (Environment & Land Case 214 of 2017) [2018] KEELC 514 (KLR)", Case Analysis (2018). ELC Case No. 214 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/514/eng@2018-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.