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ELCOtherEldoret Environment & Land Case (Notice of Motion dated 5.12.2016 within suit; prior suit Eldoret ELC No. 691 of 2012, formerly High Court Civil Suit No. 45 of 2011)· [2018] KEELC 4042 (KLR)

Kiplagat Kotut v Rose Jebor Kipngok & another [2018] KEELC 4042 (KLR)

Environment and Land Court

2 March 2018

AOA. Ombwayo

1,617 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A buyer who lost a land case can't get their money back by suing again later—refund claims expire after six years and must be raised in the first case.

What this practically means

Executive summary

The defendant (applicant) moved by notice of motion dated 5 December 2016 seeking striking out of the plaintiff's plaint dated 29 November 2016, with costs including punitive and exemplary costs, on grounds that the suit was time barred, res judicata and an abuse of court process. The plaintiff had previously sued the defendant over L.R. No. Plateau/Plateau Block 2 (Uasin Gishu)/63 in Eldoret ELC No. 691 of 2012 (formerly HCCC No. 45 of 2011), seeking specific performance of a sale agreement dated 31 January 2000. That suit was dismissed, the agreement being null and void for want of valid Land Control Board consent, and the plaintiff's appeal in Eldoret Civil Appeal No. 31 of 2015 was dismissed, with a rider that recourse lay under section 7 of the Land Control Act to recover the purchase price as a debt. The plaintiff then filed the present suit seeking refund of the consideration at current market rates and damages. The court held that the claim was contractual and therefore subject to the six-year limitation period under section 4 of the Limitation of Actions Act, running from the expiry of the consent period, and was accordingly time barred. Applying section 7 of the Civil Procedure Act and Henderson v Henderson, the court further held the suit res judicata, the refund claim having been a matter which ought to have been litigated in the former suit. The application was allowed with costs to the applicant.

Key legal issues

Limitation - recovery of purchase price under a void land sale agreement

Holding

The suit, filed more than six years after the Land Control Board consent period expired, is time barred under section 4 of the Limitation of Actions Act.

Reasoning

The court characterised the claim as contractual - recovery of consideration paid under a void land sale - which carries a 6-year limitation period. Time began running on expiry of the 6-month period within which Land Control Board consent was to be obtained after the 31.1.2000 agreement. Filing in 2016 exceeded that period.

p. 2

Res judicata - whether the refund claim should have been litigated in the former suit

Holding

The suit is res judicata; the refund issue, being inseparable from the validity of the agreement decided in ELC No. 691 of 2012, should have been pleaded there.

Reasoning

The same parties litigated over the same land in Eldoret ELC No. 691 of 2012, which nullified the sale agreement. The court, applying section 7 of the Civil Procedure Act and Henderson v Henderson, held that the refund claim belonged to that litigation and could not be raised in a fresh suit.

p. 2

Legal principles established

A claim for refund of the purchase price of land sold under a void agreement is a claim in contract for a debt, subject to a 6-year limitation period under section 4 of the Limitation of Actions Act
Res judicata extends not only to issues actually decided but to every issue which ought with reasonable diligence to have been brought forward in the former suit

Court orders

1.The defendants' application dated 5.12.2016 striking out the plaint dated 29.11.2016 is allowed
2.Costs of the application awarded to the applicant (defendant)

Authorities

Legislation

Land Control Actsection 7
Limitation of Actions Actsection 4
Civil Procedure Actsection 7

Cases cited (1)

Henderson Vs Henderson
(1843) 67 ER 313

Jurisdiction invoked: Environment and Land Court jurisdiction over disputes relating to land (Land Control Act Cap 302; Civil Procedure Act Cap 21; Limitation of Actions Act Cap 22 invoked)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kiplagat Kotut v Rose Jebor Kipngok & another [2018] KEELC 4042 (KLR)", Case Analysis (2018). Eldoret Environment & Land Case (Notice of Motion dated 5.12.2016 within suit; prior suit Eldoret ELC No. 691 of 2012, formerly High Court Civil Suit No. 45 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4042/eng@2018-03-02

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