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ELCDismissedKitale ELC (suit number not stated in judgment)· [2020] KEELC 2127 (KLR)

Liyavo Farmers Coop Society v Rosemary Wamboi Kamau & 7 others; Area Member of Parliament Kwanza & another (Interested Parties) [2020] KEELC 2127 (KLR)

Environment and Land Court
29 May 2020
MNMwangi Njoroge
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a land trespass claim is never too late to file as long as the trespasser remains on the land.

What this practically means

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Executive summary

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By a notice of motion dated 27 November 2019, the 3rd defendant sought dismissal of the plaintiff's land trespass suit as statute-barred under the Limitation of Actions Act (Cap 22) and as an abuse of the process of the court for being res judicata, pointing to the plaintiff's pleaded knowledge of the alleged illegal and fraudulent invasion in 2000 and prior litigation at Kitale and Eldoret courts, including Kitale ELC 53 of 2012, in which the suit land was declared to belong to the 1st defendant. The plaintiff, a registered cooperative society, responded through a replying affidavit sworn by its chairman and secretary general, arguing that the trespass was a continuous tortious activity not subject to limitation, that the land was public land vested in the Settlement Fund Trustees, that negotiations to have the 2nd defendant vacate failed only in 2017, and that it was never a party to the cited suits. The court framed three issues: limitation, res judicata, and costs. Relying on Janendra Raichaind Shah v Mistry Walji Naran Murji and Clerk & Lindsell on Torts, it held that continuing trespass gives rise to a fresh cause of action each day, so Cap 22 does not bar the claim. Applying KCB v Benjoh Amalgamated, it held the five res judicata elements are conjunctive; since the plaintiff and its agents were not parties to the former suits, the plea failed. The application was dismissed with costs on 29 May 2020.

Key legal issues

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01

Whether the suit in trespass is statute-barred under the Limitation of Actions Act (Cap 22)

Holding

The claim in continuing trespass is not time-barred as a fresh cause of action accrues each day the trespass continues

Reasoning

Both parties agreed the claim is in trespass to land and that the defendants remain in occupation. The court adopted the Mombasa authority and Clerk & Lindsell on Torts that every continuance of a trespass is a fresh trespass. Since the trespass is continuous to date, limitation under Cap 22 cannot apply to the suit.

p. 2
02

Whether the suit is res judicata by virtue of prior litigation including Kitale ELC 53 of 2012

Holding

The suit is not res judicata because the plaintiff was neither a party nor an agent in the former suits

Reasoning

Applying KCB v Benjoh Amalgamated, the five elements of res judicata are conjunctive. The former suit declaring the 1st defendant's rights did not involve the plaintiff or its agents; factors (a), (b), (c) and (e) were absent. Failure to prove the crucial element defeats the res judicata plea.

p. 3

Legal principles established

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  • Limitation under Cap 22 does not apply to a claim of continuing trespass where the defendant remains in occupation
  • The elements of res judicata are conjunctive and all must be present for a suit to be barred

Court orders

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  1. 1.The application dated 27/11/2019 is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)Generally
  • Civil Procedure Act (Cap 22 as referred to by applicant; Civil Procedure Act)Section 7

Cases cited (3)

  • Janendra Raichaind Shah -vs- Mistry Walji Naran Murji (Msa. Civil Suit No. 84 of 2005)
    [2014] eKLR
  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    [2017] eKLR, Nairobi Civil Appeal No. 107 of 2010
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    (2017) eKLR
Jurisdiction invoked
Environment and Land Court original jurisdiction (Civil Procedure Act, Cap 22 and the Limitation of Actions Act invoked)

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, "Liyavo Farmers Coop Society v Rosemary Wamboi Kamau & 7 others; Area Member of Parliament Kwanza & another (Interested Parties) [2020] KEELC 2127 (KLR)", Case Analysis (2020). Kitale ELC (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2127/eng@2020-05-29

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