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ELCStruck OutNot stated in the judgment· [2020] KEELC 2017 (KLR)

Kenneth Kipkurui (Suing as Administrator on behalf of the Estate of the late Joseph Kimibei Rotich v Elizabeth Kilele & 3 others [2020] KEELC 2017 (KLR)

Environment and Land Court
18 June 2020
2,273 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land claim because the family waited too long — beneficiaries have only six years to sue after discovering a breach of trust.

What this practically means

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Executive summary

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The plaintiff, as administrator of the estate of the late Joseph Kimibei Rotich, sued the defendants claiming that the 1st defendant, who was the registered proprietor of L.R. Number 330/507 as trustee for the deceased, fraudulently sold and transferred the property in 2005 to the late Daniel Kirimi M'Muna. He sought declarations that the sale amounted to breach of trust and fraud, that the property belonged to the estate, an order for registration in his name, and a permanent injunction. Together with the plaint he sought a temporary injunction by a motion dated 2/5/2019. The 1st and 2nd defendants filed a preliminary objection dated 19/11/2019 on two grounds: that the suit was filed after the lapse of 12 years contrary to Sections 7 and 17 of the Limitation of Actions Act, and that the plaintiff lacked locus standi. The court disposed of the preliminary objection first, as it raised a question of jurisdiction. It held that although the plaintiff invoked Section 20 of the Act on trusts, the applicable provision was Section 20(2), which allows a beneficiary six years from discovery of a breach of trust to sue. Since the sale occurred in 2005 and the estate formally objected to it by letter dated 1/11/2006, the cause of action had accrued on or before that date, more than twelve years before the suit was filed on 6/5/2019. The suit was therefore statute-barred. The court upheld the first limb of the preliminary objection, rejected the second limb on locus standi, declined to make findings on the injunction application, struck out the suit and ordered the plaintiff to bear the costs.

Key legal issues

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01

Whether the claim, though framed as a trust claim under Section 20 of the Limitation of Actions Act, was statute-barred

Holding

The court upheld the first limb of the preliminary objection, holding that the claim fell under Section 20(2) which prescribes a six-year limitation period from accrual of the cause of action

Reasoning

The court interpreted Section 20(2) as giving a beneficiary six years from discovery of breach of trust to sue. The sale occurred in 2005 and the plaintiff formally objected to it by letter dated 1/11/2006, showing knowledge of the transaction. More than twelve years elapsed before the suit was filed on 6/5/2019, so the claim was extinguished by limitation.

p. 4
02

Whether the plaintiff, as administrator of the estate, lacked locus standi

Holding

The second limb of the preliminary objection was rejected; the plaintiff as administrator was the proper person to sue on behalf of the estate

Reasoning

No convincing or relevant submission was presented to support the second ground. The plaintiff had exhibited a grant of letters of administration demonstrating his due appointment, and as administrator he was the proper person to institute proceedings on behalf of the estate. Nothing serious was presented to challenge his locus standi.

p. 4

Legal principles established

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  • Once the beneficiary of trust property discovers a breach of trust, he has six years within which to bring an action relating to the breach, after which the claim is statute-barred
  • A preliminary objection raising the question whether the court should entertain a suit poses a question of jurisdiction and should be disposed of first

Court orders

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  1. 1.The first limb of the preliminary objection is upheld and the suit is struck out on the ground that it is statute-barred under the Limitation of Actions Act
  2. 2.The plaintiff shall bear costs of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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 Kipkurui (Suing as Administrator on behalf of the Estate of the late Joseph Kimibei Rotich v Elizabeth Kilele & 3 others [2020] KEELC 2017 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2017/eng@2020-06-18

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