Shem Kihaya Asunga v Registered Trustees of Legio Maria Church [2018] KEELC 3852 (KLR)

The defendant contended the court lacked jurisdiction, but the reliefs sought in the plaint concern the amendment of registry index maps and mutation forms over land parcels, which fall squarely within the mandate of the Environment and Land Court under the Constitution and the enabling statutes. The plaintiff relied on Section 101 of the Land Registration Act, 2012, and the court agreed that the constitutional provision and the reinforcing statutes conferred jurisdiction.

On perusal of the original record of Migori CMCC No. 25 of 2000, the court found that the trial magistrate had on 13th January 2005 referred the dispute to the appropriate Land Disputes Tribunal and discontinued the suit, so the matter was never heard and finally determined. Further, the parcels in the earlier case were Suna/Wasweta 1/3547 and 1776, while the present suit concerns Suna East/Wasweta 1/1776 and 1777, meaning the subject matters are not substantially the same. It was also unestablished whether any Land Disputes Tribunal or appeals committee heard and determined the same matter between the same parties.

Defendant's counsel cited Sections 7 and 4(1) of the Limitation of Actions Act, arguing the cause of action arose in 1985 and the claim filed in 2012 was out of time. The court recorded these submissions and the statutory provisions but, in its summation, confined its findings to jurisdiction and res judicata/sub judice, concluding the entire preliminary objection lacked merit and disallowing it. The limitation point was therefore not separately upheld.