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ELCDismissedELCA No. 1 of 2019· [2020] KEELC 2091 (KLR)

County Government of Laikipia v James Kimani Mburu & 3 others [2020] KEELC 2091 (KLR)

Environment and Land Court
17 June 2020
MOM.C. Oundo
2,966 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 ruled a trespass claim stays alive for as long as the trespasser remains on the land.

What this practically means

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Executive summary

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The County Government of Laikipia appealed against the ruling of Hon. J Wanjala (Ms) CM of the Nyahururu Chief Magistrate's Court delivered on 23 January 2019, dismissing its Preliminary Objection that the Respondents' suit for recovery of land was time barred under Section 7 of the Limitation of Actions Act. The Appellant contended that the Respondents' rights of action accrued between 1991 and 1997 when they were allocated or purchased the suit plots but could not utilise them because the land was occupied as public 'mitumba' markets, so a suit filed in 2018 was over 12 years late. The Respondents maintained that the cause of action arose in November 2018 from recent and continuous acts of trespass, including demolitions and attempted eviction, and that the Preliminary Objection was blurred by contested facts. M.C. Oundo J, as the first appellate court, reconsidered the material and framed two issues: whether the trespass suit was statute barred and whether the Preliminary Objection was sustainable. Relying on the doctrine of continuing trespass, under which every continuance of a trespass is a fresh trespass creating a new cause of action from day to day, the court held that time began to run afresh as long as the Appellant remained in occupation, so Section 7 did not bar the suit. Further, applying Mukisa Biscuits and Oraro v Mbaja, the objection was unsustainable because it rested on disputed facts requiring a full trial. The appeal was dismissed with costs to the Respondents and the matter was remitted to the Chief Magistrate's Court to proceed to hearing.

Key legal issues

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01

Whether the Respondents' suit for trespass was statute barred under Section 7 of the Limitation of Actions Act

Holding

The suit was not time barred because the trespass pleaded was continuous, generating fresh causes of action from day to day

Reasoning

The court defined trespass and continuing trespass, noting the Respondents alleged the Appellant continued committing fresh acts of trespass by remaining in occupation of the suit land. Where trespass is continuous, time begins to run afresh daily, so Section 7's twelve-year limitation for actions to recover land does not apply.

p. 4
02

Whether the Preliminary Objection was sustainable as a pure point of law

Holding

It was unsustainable because it was founded on disputed facts requiring evidence at trial

Reasoning

Applying Oraro v Mbaja and Mukisa Biscuits, a preliminary objection must rest on undisputed facts and must not derive its foundation from factual information to be tested by evidence. The date the cause of action accrued was hotly contested, so the objection could not succeed on a point of law alone and the matter required a full trial.

p. 4

Legal principles established

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  • Every continuance of a trespass is a fresh trespass giving rise to a new cause of action from day to day, so limitation does not bar a suit founded on continuous trespass
  • A preliminary objection must be a pure point of law not blurred by contested factual details

Court orders

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  1. 1.Appeal dismissed with costs to the Respondents
  2. 2.Finding of the trial Court upholding
  3. 3.Matter to proceed for hearing and determination in the Chief Magistrates' Court as earlier scheduled

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 4

Cases cited (13)

  • Haron Onyancha vs National Police Service Commission & Another
    [2017] eKLR
  • Gathoni vs Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Chevron (K) Ltd vs Harrison Charo Wa Shutu
    [2016] eKLR
  • Maweu vs Kiu Ranching & Farming Co-operative Society Ltd
    [1985] KLR 430
  • Nelson Machoka Keraro vs Land Registrar Kisii & 3 Others
    [2019] eKLR
  • Mukisa Biscuits Manufacturing Ltd vs West End Distributors
    (1969) EA 696
  • Eliud Njoroge Gachiri vs Stephen Kamau Nganga
    [2018] eKLR
  • Seascapes Ltd v. Development Finance Company of Kenya Ltd
    [2009] KLR 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • John Kiragu Kimani vs Rural Electrification Authority
    [2018] eKLR
  • Gladys Koskey v Benjamin Mutai
    [2017] eKLR
  • Nguruman Limited V Shompole Group Ranch & 3 Others
    Civil Appeal No 73 of 2004, reported in 2007 KLR
  • Oraro vs Mbaja
    (2005) KLR 141
On appeal from
Chief Magistrate's Court at Nyahururu
ELC Case No. 374 of 2018
Jurisdiction invoked
First appellate jurisdiction over appeals from the Chief Magistrate's Court in land and environment matters

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "County Government of Laikipia v James Kimani Mburu & 3 others [2020] KEELC 2091 (KLR)", Case Analysis (2020). ELCA No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2091/eng@2020-06-17

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