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ELCDismissedEldoret ELCA No. 10 of 2018· [2019] KEELC 1012 (KLR)

Kenneth Kibet Cherutich v Committee Kipkaa Primary School & Headmaster, Kipkaa Primary School [2019] KEELC 1012 (KLR)

Environment and Land Court
6 November 2019
SKS. M. Kibunja
3,579 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a son's 25-year-late claim to school land his father had sold decades earlier, ruling the land was held in trust and the suit was time barred.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Eldoret against the judgment of Hon. Mary Gorreti Chepseba in Iten RMCC No. 20 of 2007, which had dismissed the Appellant's suit over L.R. Elgeyo Marakwet/Kapterik/1774 on the ground of lack of capacity. The Appellant, as administrator of his late father's estate, sought to set aside that judgment and recover the land occupied by the 1st respondent school since 1980, claiming compensation of Kshs.400,000 per year or vacant possession, eviction and injunction. The court, on a fresh evaluation of the evidence, found that the trial Magistrate erred in law: the grant of letters of administration issued on 12th July 2005 clothed the Appellant with capacity to sue, and failure to confirm the grant within six months did not divest that capacity absent revocation. However, the court found on the merits that the deceased had sold the land in 1977 to DW2, who surrendered it to the community for the school, so the deceased held registration only in trust and the land was not part of his estate, applying the constructive trust principles in Willy Kimutai Kitilit and Felix Kipchoge Limo Langat. The court further held the claim was statute time barred under Section 7 of the Limitation of Actions Act, the cause of action having arisen in 1980 and the suit filed about twenty-five years later. The appeal was dismissed with costs.

Key legal issues

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01

Capacity of an administrator to sue before confirmation of grant

Holding

The trial Magistrate erred in finding the Appellant lacked capacity; the grant clothed him with powers of a personal representative including enforcing causes of action surviving the deceased

Reasoning

The court held that the letters of administration intestate issued on 12th July 2005 gave the Appellant powers under Section 82 of the Law of Succession Act, including to enforce causes of action surviving the deceased. Under Section 80(2), the grant takes effect from its date. Failure to confirm within six months did not strip capacity; only revocation or annulment could. Pre-confirmation, the only restriction is on distribution or disposal of immovable property under proviso (ii) of Section 82(b).

p. 3
02

Whether the suit land formed part of the deceased's estate

Holding

The deceased had sold the land to DW2 in 1977 and held registration in trust; the land was not part of the estate at his death

Reasoning

The unchallenged testimony of DW2 and DW5 showed the deceased sold the land in 1977 and was not the one who surrendered it for the school. The green card showed no title deed was ever issued, suggesting the deceased held no beneficial interest. Registration in his name in 1993 made him a trustee, applying constructive trust principles from Kitilit and Langat, so the land was not estate property.

p. 4
03

Limitation of actions

Holding

The claim was statute time barred, having been filed in 2005, about 25 years after the cause of action arose in 1980, outside the twelve-year window

Reasoning

The respondents took possession in 1980 when the school was established. Section 7 of the Limitation of Actions Act allows twelve years for recovery of land. The suit filed in 2005 was therefore time barred. The trial Magistrate had overruled a preliminary objection on this point but never determined limitation in her judgment, so this court pronounced on it.

p. 4

Legal principles established

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  • A grant of letters of administration confers capacity to sue on behalf of an estate, and failure to confirm the grant within six months does not divest that capacity unless the grant is revoked or annulled
  • Actions for recovery of land must be brought within twelve years of the cause of action arising under Section 7 of the Limitation of Actions Act

Court orders

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  1. 1.The Appellant's appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 2; Section 78
  • Law of Succession ActSection 3; Section 80(2); Section 82 (including proviso (ii) of Section 82(b))
  • Land ActNo. 6 of 2012 (title deed as evidence of ownership)
  • Limitation of Actions ActSection 7
  • Basic Education ActSection 43
  • Government Proceedings ActSection 12
  • Attorney General ActSections 6(2) and 7
  • Constitution of KenyaArticle 156(4) and (6)

Cases cited (7)

  • Isaya Masira Momanyi Vs Daniel Omwoyo & Another
    [2017] eKLR
  • Trouistik Union International & Another Vs Jane Mbeya & Another
    [2008] eKLR (G&F) 730
  • Rawal Vs Rawal
    [1990] KLR 2
  • Lilian Njeri Muranja & John Maranja Mahinda Vs Virginia Nyambura Ndiba & Kajiado County Government
    [2014] eKLR
  • Patricia Bini Vs Melina Investments Ltd & 3 Others
    [2015] eKLR
  • Willy Kimutai Kitilit Vs Michael Kibet
    [2018] eKLR
  • Felix Kipchoge Limo Langat Vs Robinson Kiplagat Tuwei
    [2018] eKLR
On appeal from
Principal Magistrate's Court, Iten
Iten RMCC No. 20 of 2007
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act (Cap 21)

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, "Kenneth Kibet Cherutich v Committee Kipkaa Primary School & Headmaster, Kipkaa Primary School [2019] KEELC 1012 (KLR)", Case Analysis (2019). Eldoret ELCA No. 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1012/eng@2019-11-06

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