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ELCPartially Allowed· [2020] KEELC 3031 (KLR)

Joel Kiptanui Chemweno v Joseph K M Tireito [2020] KEELC 3031 (KLR)

Environment and Land Court
23 April 2020
MOM. A. Odeny
1,548 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret land buyer who sued 21 years after a 1983 sale lost his claim because Kenyan law gives you only 12 years to sue over land.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 4th August 2004 seeking specific performance of an alleged sale of 5 acres, injunctive relief and any other relief. The defendant denied selling 5 acres, contending that the Land Control Board consent for 10 acres was obtained fraudulently, and counterclaimed for its revocation. PW1 testified that he and the late Elijah Sumbeywo bought 10 acres, paying Kshs 50,000/ with an LCB consent issued, but that the defendant later took back 3 acres leaving him with 2. He admitted the cheque he tendered was dishonoured and that the suit was filed 21 years after the alleged 1983 agreement. The High Court in Eldoret had already declared the Land Disputes Tribunal lacked jurisdiction over registered land. DW1 denied any agreement with the plaintiff, saying he stood in for Elijah Sumbeywo at the LCB, and admitted only 2 acres were paid for at Kshs 100,000/, which he was willing to transfer. DW2, Sumbeywo's widow, corroborated the 2-acre purchase. The court found no written agreement was produced, the consent's acreage and consideration did not tally, and the plaintiff failed to prove his case. It further held the suit time barred under section 7 of the Limitation of Actions Act, filed 21 years after accrual, and declined specific performance as an equitable, discretionary remedy unavailable on an unproved, defective contract. Applying Reliable Electrical Engineers Ltd v Mantrac Kenya Ltd, the court dismissed the plaintiff's case with costs, allowed the counterclaim with costs, revoked the LCB consent as null and void, and, on the defendant's admission, directed transfer of 2 acres to the plaintiff in the interest of justice.

Key legal issues

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01

Existence and terms of the sale agreement

Holding

No written agreement was produced; the plaintiff's claim of 5 acres was not proved, though the defendant admitted entitlement to 2 acres

Reasoning

The agreement was allegedly retained by the deceased Elijah Sumbeywo and was never produced, so the parties, acreage, consideration and payment terms could not be established. The LCB consent indicated 10 acres at Kshs 50,000/ while the plaintiff alleged Kshs 100,000/ by a cheque that was dishonoured, so the documents did not corroborate the plaintiff's word.

p. 2
02

Limitation of actions

Holding

The suit, filed in 2004 over an alleged 1983 agreement, is time barred under section 7 of the Limitation of Actions Act

Reasoning

Section 7 bars an action to recover land after 12 years from accrual of the right of action. The plaintiff filed 21 years after the alleged agreement, well beyond the 12-year limit, so even if the agreement existed the claim would fail as statute barred.

p. 2
03

Specific performance

Holding

Specific performance was refused as the plaintiff failed to prove a valid enforceable contract

Reasoning

Relying on Reliable Electrical Engineers Ltd v Mantrac Kenya Ltd, the court held that specific performance is discretionary, based on a valid enforceable contract, and unavailable where damages are adequate or the contract suffers defects. The contract here was unclear, time barred and lacked basic contractual terms.

p. 2
04

Defendant's counterclaim - revocation of LCB consent

Holding

The Land Control Board consent for 10 acres was declared null and void and revoked

Reasoning

The consent was unsupported by documentation and did not reflect the transaction; the plaintiff himself did not claim the full 10 acres. The court therefore revoked it as being of no purpose. The defendant's admission of willingness to transfer 2 acres was acted upon in the interest of justice.

p. 2

Legal principles established

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  • An action to recover land may not be brought after the end of 12 years from when the right of action accrued, under section 7 of the Limitation of Actions Act
  • Specific performance is a discretionary equitable remedy, unavailable where there is an adequate alternative remedy or where the contract is invalid

Court orders

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  1. 1.The plaintiff's case is dismissed with costs
  2. 2.The counterclaim in respect of revocation of the Land Control Board consent is allowed with costs to the defendant
  3. 3.The Land Control Board consent for transfer of 10 acres is declared null and void and revoked
  4. 4.In the interest of justice, the defendant is to transfer 2 acres to the plaintiff, being an admission

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Control ActLand Control Board consent (implied)

Cases cited (1)

  • Reliable Electrical Engineers Ltd Vs Mantrac Kenya Limited
    (2006) eKLR
Jurisdiction invoked
Original jurisdiction ( Environment and Land Court) over land claim and counterclaim; not stated by provision

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, "Joel Kiptanui Chemweno v Joseph K M Tireito [2020] KEELC 3031 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3031/eng@2020-04-23

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