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ELCStruck OutELC No. 305 of 2017· [2020] KEELC 171 (KLR)

Daniel Githiora Gatuha & 2 others v Joe Karanja Njoroge & 3 others [2020] KEELC 171 (KLR)

Environment and Land Court
10 December 2020
JKJ G Kemei
3,970 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's land court struck out a land ownership suit filed 18 years late, confirming that time-barred claims cannot be heard at all.

What this practically means

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Executive summary

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The three Plaintiffs, suing on their own behalf and on behalf of 34 claimants, sought declarations that they were the true owners of parcels subdivided from land owned by Kagaa Farmers Coop Society Ltd, a permanent injunction, cancellation of title No. MAKUYU/KIMORORI/BLOCK-111/3932 (created in 2007 by consolidating previously subdivided parcels) and of subsequent subdivisions, and general and exemplary damages. They alleged that the 1st Defendant, the Society's Chairman, colluded with the Land Registrar and Land Surveyor to consolidate the mother parcels after they had been subdivided and allocated to members in 1998/99. The 1st and 4th Defendants denied the Thika subdivisions' validity; the 2nd and 3rd Defendants denied any fraud, saying they acted on documents presented. Before reaching the four framed issues, the court raised, on its own motion, whether the claim was barred by statute. The court characterised the plaint as a claim for recovery of land: the Plaintiffs' own evidence showed allocation, occupation and removal in 1999, so the twelve-year period under Section 7 of the Limitation of Actions Act expired in 2011; even the fraud claim, based on 2012 discovery, was outside the three-year limit, and no extension was sought under Sections 27 and 28. Applying Iga v Makerere University, Gathoni v KCC and Mehta v Shah, the court held that limitation goes to the root of jurisdiction, struck out the suit without determining the merits, and awarded the Defendants costs.

Key legal issues

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01

Whether the Plaintiffs' claim was barred by the Limitation of Actions Act

Holding

Yes. The gist of the plaint was a claim for recovery of land; allocation, registration, occupation and removal occurred in 1999, so the twelve-year period expired in 2011, and even the three-year fraud claim (discovery in 2012) expired in 2015. No extension of time under Sections 27 and 28 was sought. The suit was therefore struck out without determining the framed issues.

Reasoning

The court characterised the Plaintiffs' prayers as essentially a claim for recovery of land. On the Plaintiffs' own evidence they were allocated land in 1998/99, occupied and developed it, and were removed around 1999/2000. The suit filed in 2017 was 18 years late, well beyond the twelve-year limit in Section 7. The alternative fraud claim based on 2012 discovery also fell outside the three-year limit in Section 4, and no leave for extension under Sections 27 and 28 had been obtained. Citing Iga v Makerere University, Gathoni v KCC and Mehta v Shah, the court held limitation goes to jurisdiction, and struck out the suit without considering the merits.

p. 5

Legal principles established

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  • A claim for recovery of land must be brought within twelve years of the accrual of the right of action under Section 7 of the Limitation of Actions Act, and an action founded on fraud within three years of discovery
  • Limitation goes to the root of the jurisdiction of the court to entertain a suit; a time-barred plaint must be rejected

Court orders

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  1. 1.The Plaintiffs' suit is struck out without the necessity of determining the issues framed
  2. 2.The Defendants shall have the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 4
  • Limitation of Actions ActSections 27 and 28
  • Civil Procedure RulesOrder 1 Rule 24

Cases cited (3)

  • Iga –vs- Makerere University
    [1972] E.A 65
  • Gathoni –vs- Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Mehta –vs- Shah
    [1965] E.A 321
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes); suit filed by plaint

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, "Daniel Githiora Gatuha & 2 others v Joe Karanja Njoroge & 3 others [2020] KEELC 171 (KLR)", Case Analysis (2020). ELC No. 305 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/171/eng@2020-12-10

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