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ELCOtherBungoma ELC (amended plaint dated 30th May 2017)· [2019] KEELC 490 (KLR)

Pharis Wekesa Masibo v Beatrice Manyonge & 5 others [2019] KEELC 490 (KLR)

Environment and Land Court
11 December 2019
BOBoaz N. Olao
1,547 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 court ruled that someone occupying your land without permission creates a fresh legal wrong every day, so you can sue even decades after they first entered.

What this practically means

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Executive summary

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By an amended plaint dated 30th May 2017, the plaintiff, as registered proprietor of land parcel East Bukusu/South Kanduyi/4106, sued for eviction of the defendants, a permanent injunction, mesne profits, exhumation of the body of the 1st defendant's deceased husband MANYONGE WASWA buried on the land, and costs. The plaintiff averred he purchased the land from the deceased in 1974 and took possession, but in 1989 the deceased unlawfully entered, ploughed and constructed houses, and later sold portions to the other defendants. The 1st, 3rd, 4th and 5th defendants denied the sale, asserted a Kanduyi Land Disputes Tribunal award in the deceased's favour, alleged fraud in the plaintiff's title, and contended the burial was proper. On 22nd October 2018 they filed a Preliminary Objection under Section 7 of the Limitation of Actions Act Cap 22, arguing the cause of action accrued on 28th February 1989 and the suit brought 27 years later was time-barred, citing Iga v Makerere University and Haron Onyancha v National Police Service. The court held the claim is essentially one in trespass, and that the defendants' continued occupation, structures and the burial constitute a continuing trespass giving rise to a fresh cause of action day by day, applying the Court of Appeal decision in Isaack Ben Mulwa v Jonathan Mutunga Mweke. Section 7 therefore does not defeat the claim. The Preliminary Objection was dismissed with costs.

Key legal issues

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Whether the plaintiff's claim to recover land is barred by Section 7 of the Limitation of Actions Act (12 years)

Holding

The Preliminary Objection fails because the plaintiff's claim is one in continuing trespass, which renews daily so long as the defendants remain on the land, and is therefore not defeated by limitation

Reasoning

The court read paragraphs 6(a), 7(a) and 8 of the amended plaint and concluded the plaintiff's claim is basically one in trespass, seeking eviction, injunction, exhumation and mesne profits. The entry of 28th February 1989 was the first trespass, but the defendants' continued occupation, construction and the burial of MANYONGE WASWA on the land constitute a continuing trespass generating fresh causes of action daily, so Section 7 does not bar the suit.

p. 2

Legal principles established

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  • A continuing trespass gives rise to a fresh cause of action from day to day for as long as it continues, and such a claim cannot be defeated by Section 7 of the Limitation of Actions Act

Court orders

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  1. 1.The Preliminary Objection dated 22nd October 2018 is dismissed
  2. 2.The 1st, 3rd, 4th and 5th defendants to pay the costs of the Preliminary Objection

Authorities

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Legislation

  • Limitation of Actions ActSection 7 (Chapter 22 Laws of Kenya)

Cases cited (3)

  • IGA v MAKERERE UNIVERSITY
    1972 EA 65
  • HARON ONYANCHA v NATIONAL POLICE SERVICE
    2017 eKLR
  • ISAACK BEN MULWA v JONATHAN MUTUNGA MWEKE
    C.A Civil Appeal No 6 of 2015 [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel East Bukusu/South Kanduyi/4106

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, "Pharis Wekesa Masibo v Beatrice Manyonge & 5 others [2019] KEELC 490 (KLR)", Case Analysis (2019). Bungoma ELC (amended plaint dated 30th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/490/eng@2019-12-11

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