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ELCDismissedMurang'a Chief Magistrate Court Civil Case No. 32 of 2015 (appeal therefrom)· [2019] KEELC 1945 (KLR)

Irungu Kibe v John Maina Kibe (Suing as the Legal Representative of Ruth Njeri Kibe (Deceased) [2019] KEELC 1945 (KLR)

Environment and Land Court
31 July 2019
3,069 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that beneficiaries suing to recover trust land are never blocked by limitation periods, and preliminary objections must raise pure points of law.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court, Murang'a, against a ruling of Resident Magistrate J.J Masiga of 5/02/2016 in Murang'a CMCC Civil Case No. 32 of 2015 dismissing the defendant's preliminary objection. The plaintiffs claimed a beneficial interest in LOC.10/MUKANGU/328, alleging that the land had been allocated to their deceased mother Ruth Njeri Kibe in succession cause No. 59 of 1984 (estate of Kibe Mbuthia), but that she died in 1989 before transfer, whereupon the land was registered in the defendant's name, creating a resulting trust. They sought a declaration of trusteeship, cancellation of the defendant's title and registration in their names in equal shares. The defendant denied the trust, contended the deceased had no estate to pass, pleaded limitation (the 1989 judgment having gone stale), res judicata, and lack of jurisdiction, and counterclaimed for eviction. The trial magistrate overruled the objection, holding most grounds raised facts, and that limitation on trust ran from the defendant's registration in 2010. On appeal, J G Kemei J applied Mukisa Biscuits on the nature of preliminary objections, and, following Stephens v Stephens, held that section 20(1)(b) of the Limitation of Actions Act excludes limitation for beneficiaries' claims to recover trust property. The court also declined to find res judicata for want of the succession proceedings on record. The appeal was dismissed with costs; the lower court suit was directed to be heard on its own merits.

Key legal issues

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01

Whether the preliminary objection raised pure points of law

Holding

The objection was properly overruled because it mixed points of law and fact; the claim on resulting trust required ascertainment of facts

Reasoning

The court, applying Mukisa Biscuits, noted that while limitation and res judicata are points of law, the question whether a resulting trust existed, and the plaintiffs' long occupation, required evidence. The trial magistrate correctly identified limitation of actions on trust as the only pure point of law, and on that point the appellant still failed because limitation does not apply to trust claims.

p. 4
02

Whether the trust claim was statute-barred

Holding

No - limitation of actions is inapplicable to trusts; no period of limitation applies to a beneficiary's action to recover trust property

Reasoning

Relying on Stephens & others v Stephens, the court held that section 20(1)(b) of Cap 22 excludes limitation periods for actions by beneficiaries to recover trust property. The cause of action on trust could not be defeated by the 12-year limitation period argued by the appellant.

p. 4
03

Whether the suit was res judicata in view of succession cause No. 59 of 1984

Holding

The court declined to find res judicata because the succession court proceedings and judgment were not placed before the trial court

Reasoning

The appellant argued that ownership had been litigated in the 1984 succession cause, but apart from the 1989 order there was no detailed judgment or proceedings showing the issues and parties involved. Without that material the trial court could not make a finding on res judicata.

p. 4

Legal principles established

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  • Limitation of Actions does not apply to an action by a beneficiary to recover trust property from a trustee (section 20(1)(b) of the Limitation of Actions Act, Cap 22)
  • A preliminary objection must raise pure points of law and cannot be raised where facts must be ascertained or judicial discretion exercised

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The suit in the lower court shall be heard on its own merits
  3. 3.The Appellant shall pay the costs of the appeal and the costs of the preliminary objection in the lower court

Authorities

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Legislation

  • Limitation of Actions ActCap 22; section 20(1)(b); section 19(1) of the English Limitation Act 1939 referenced

Cases cited (7)

  • Samuel Waweru vs. Geoffrey Muhoro Mwangi
    (2014) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd
    [1969] EA 696
  • In the Estate of Tuaruchiu Marete (deceased)
    [2019] eKLR
  • Kambora Kamau vs. Esther Nyambura Kirima
    [2002] eKLR
  • Succession Cause No. 1086 of 1995 in the matter of the estate of Ndung'u Kariuki
    unreported
  • Kenya Ports Authority vs. Kuston (Kenya) Limited
    [2009] 2EA 212
  • Stephens & 6 others v Stephens & another
    [1987] eKLR
On appeal from
Murang'a Chief Magistrate Court
Civil Case No. 32 of 2015
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Resident Magistrate's court (ruling on a preliminary objection)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Irungu Kibe v John Maina Kibe (Suing as the Legal Representative of Ruth Njeri Kibe (Deceased) [2019] KEELC 1945 (KLR)", Case Analysis (2019). Murang'a Chief Magistrate Court Civil Case No. 32 of 2015 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1945/eng@2019-07-31

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