Silvester K. Kaitany v Nyayo Tea Zones Development Corporation & another; National Land Commission & another (Interested Parties) [2020] KEELC 529 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a land claim is not time-barred when the facts, including alleged fraud and fresh acts of trespass, must be decided at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
It did not; contested facts in the defence, including allegations of fraud in the acquisition of title, required ascertainment at trial
The court noted that the 1st defendant's defence alleges the plaintiff's title was fraudulently and illegally obtained and that the land is a gazetted forest. Where an action is based on fraud, limitation runs only from discovery of the fraud, which is a matter of evidence. Since the objection would require the court to ascertain facts outside the pleadings, it failed the test in Mukisa Biscuit and Oraro v Mbaja.
Whether the claim was time-barred as a continuing trespass from 2004
Each successive act of trespass constitutes a fresh cause of action, so the 2016 encroachment was not merely a continuation of the 2004 acts
Relying on the Court of Appeal's decision in Isaack Ben Mulwa v Jonathan Mutunga Mweke, the court held that continuous injuries to land caused by maintenance of tortious acts create separate causes of action, each barred only by the running of limitation against each successive act. The pleaded encroachment of a further 13 acres in 2016 therefore gave rise to a distinct cause of action within time.
Whether the court should strike out a suit at a preliminary stage where substantive rights are at stake
The power to strike out is drastic and should be exercised sparingly so as not to drive litigants from the seat of justice
Adopting the reasoning in Kivanga Estates Limited v National Bank of Kenya Limited, the court observed that striking out is a draconian, guillotine jurisdiction of last resort. Where substantive issues concerning ownership, gazettement and compensation can be ventilated at trial without prejudice to either party, it is preferable to allow the suit to proceed to a full hearing.
Legal principles established
#- A preliminary objection must be a pure point of law pleaded on the assumption that all facts pleaded by the other side are correct, and cannot be raised where any fact has to be ascertained
- Continuous trespasses to land give rise to fresh and separate causes of action for limitation purposes
- Where an action is based on fraud of the defendant, limitation does not begin to run until the fraud is discovered or could with reasonable diligence have been discovered
Court orders
#- 1.The preliminary objection by the 1st defendant is dismissed with costs to the plaintiff
- 2.The parties to fast track the hearing of the case by complying with Order 11 within 30 days
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property L.R. No. 22209 (I.R. No. 82519); objection raised under the Limitation of Actions Act, Cap. 22
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silvester K. Kaitany v Nyayo Tea Zones Development Corporation & another; National Land Commission & another (Interested Parties) [2020] KEELC 529 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/529/eng@2020-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.