Charles Wasike Makokha v Stephen Lumunyasi & 8 others [2019] KEELC 2589 (KLR)
The bottom line
#The Bungoma Environment and Land Court dismissed a landowner's eviction suit because it was filed too late and the land no longer legally existed.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is statute-barred under section 7 of the Limitation of Actions Act
The suit is statute-barred; the right of action accrued decades before filing, as the defendants purchased their parcels as far back as 1976 and the land was subdivided in 1989
The plaintiff filed suit on 29 July 2010 claiming invasion between 1985 and 2009. The defendants' witness statements show purchases dating back to 1976, and the title to parcel 1451 shows the suit land was hived off on 6 November 1989, some 21 years before filing. The court held the claim to recover land was brought well beyond the twelve-year limit.
Whether eviction can issue in respect of land that no longer exists
No eviction can be ordered because the suit land was subdivided into numerous parcels registered in the names of the defendants and others, and the title relied on by the plaintiff was closed
Although the plaintiff produced a title deed issued 30 April 2010, that title was closed many years earlier. The resultant sub-divisions (parcels 1558, 1556, 1449, 1751, 1749, 1450, 1451, among others) are registered in the names of the defendants and non-parties. There is therefore no extant parcel from which the defendants can be evicted.
Effect of failure to join Wamaya Nyola Waraba, from whom the defendants derived title
In the absence of Wamaya Nyola Waraba, who allegedly obtained the suit land fraudulently, the defendants' titles cannot be challenged
The court found Wamaya Nyola Waraba and the plaintiff both held titles to the suit land and, absent evidence of how he purchased it, concluded he obtained it fraudulently. However, he is not a party, so no orders can lie against him, and without joining him it is difficult to challenge the defendants' derivative titles.
Legal principles established
#- An action to recover land may not be brought after twelve years from when the right of action accrued
- A party whose title is not challenged in the pleadings cannot be evicted merely on the basis of another party's registration
Court orders
#- 1.The suit is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Wasike Makokha v Stephen Lumunyasi & 8 others [2019] KEELC 2589 (KLR)", Case Analysis (2019). Bungoma ELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2589/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.