Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Malindi ELC)· [2021] KEELC 100 (KLR)

Desterio Andadi Oyatsi & 2 others v Stephen Charo Nzai & 2 others [2021] KEELC 100 (KLR)

Environment and Land Court
14 December 2021
2,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling by M.A. Odeny, J of the Environment and Land Court at Malindi, dated 14th December 2021, determined a Notice of Motion dated 24th March 2021 by the plaintiffs seeking an interim and temporary injunction restraining the 1st defendant from transferring, alienating or further developing the suit property Chembe/Kibabamshe/377, pending hearing of the main suit. The 1st and 3rd defendants raised preliminary objections contending that the suit property does not form part of the deceased's estate, that the suit is statute barred under section 7 of the Limitation of Actions Act, and that the plaintiffs are guilty of laches, the cause of action having allegedly arisen in 2002. The plaintiffs asserted that the land was allocated to Nicholas Kiprono Biwott (deceased) by adjudication in 1979, that a second title was issued to the 1st defendant around January 2002, and that the National Land Commission's verification process culminated in a 2020 verdict regularizing the property to the deceased, which the suit sought to implement. The court held that the limb concerning the estate required evidence and was not a pure point of law, so it failed. On limitation, the court followed Justus Tureti Obara v Peter Koipeitai, holding that where fraud is alleged, time runs from discovery of the fraud; the suit was therefore not time barred. The preliminary objection was dismissed with costs to the plaintiffs. On the injunction, the court declined the injunction as sought and instead ordered that the status quo prevailing at the time of filing suit be maintained, with parties directed to comply with Order 11 within 30 days. The disposition was thus partially in the plaintiffs' favour.

Key legal issues

#
01

Whether the objection that the suit property does not form part of the deceased's estate is a proper preliminary objection

Holding

It is not; it fails because it requires evidence to be ascertained

Reasoning

The court held preliminary objections must be purely on points of law without going outside the pleadings to facts. Whether the suit property forms part of the deceased's estate would require evidence from the succession cause and other documents, which cannot be addressed on a preliminary objection based on undisputed facts.

p. 4
02

Whether the suit is statute barred under section 7 of the Limitation of Actions Act

Holding

No; because the claim is founded on alleged fraudulent registration, time runs from discovery of the fraud under the proviso to section 26(a)

Reasoning

The matter was handled by the National Land Commission from 2014, culminating in a 2020 verdict that the land belonged to the deceased and was fraudulently registered in the 1st defendant's name, which necessitated the suit. Applying Justus Tureti Obara v Peter Koipeitai, where fraud is alleged, limitation runs from discovery of the fraud.

p. 4
03

Whether the plaintiffs were entitled to a temporary injunction

Holding

A temporary injunction was not granted; instead the court ordered maintenance of the status quo prevailing at filing of the suit

Reasoning

The purpose of interlocutory injunctions is to preserve the substratum of the case. The defendants did not submit on the injunction application despite directions. Balancing the competing interests, the court found the suitable order was preservation of the status quo as at filing, rather than the injunction sought.

p. 4

Legal principles established

#
  • A preliminary objection must be founded on pure points of law on undisputed facts and cannot be used where facts require evidential ascertainment
  • Where a claim of recovery of land is based on fraud, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud

Court orders

#
  1. 1.The preliminary objection is dismissed with costs to the plaintiff
  2. 2.The status quo prevailing at the time of filing this suit be maintained
  3. 3.Parties to comply with Order 11 within 30 days

Authorities

#

Legislation

  • Limitation of Actions Act, Cap. 22sections 7, 13, 17
  • Limitation of Actions Act, Cap. 22proviso to section 26(a)
  • Civil Procedure Rules, 2010Order 40(1)(a) and (b)
  • Civil Procedure Rules, 2010Order 11; Order 21(1)

Cases cited (15)

  • Chengo Katana Koi Vs Protus Evan Masinde
    [2013] eKLR
  • Benjamin Kamau Murma & other v Gladys Njeri
    CA No. 213 of 1996
  • IGA v Makerere University
    [1972] EA 65
  • Esther Chemutai Keter v David Kipkorir Koech & 3 others
    [2021] eKLR
  • South Nyanza Sugar Co. Limited v Manasse Ogaro Otieko
    [2020] eKLR
  • Giella v Cassman Brown & Company Limited
    [1973] EA 358
  • Robert Mugo wa Karanja v Ecobank (Kenya) Limited & another
    [2019] eKLR
  • Moses C. Muhia Njoroge & 2 others vs Jane W Lesaloi and 5 others
    (2014) eKLR
  • Shiva Carriers Limited v Imperial Bank Limited & another
    [2018] eKLR
  • Banis Africa Ventures Limited v National Land Commission
    [2021] eKLR
  • Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
  • Edward Moonge Lengusuranga v James Lanaiyara & another
    [2019] eKLR
  • Justus Tureti Obara vs Peter Koipeitai
    [2014] eKLR
  • Onchari Ogoti v Safaricom Limited & another
    [2020] eKLR
  • Avtar Singh Bhamra & Ano. v Oriental Commercial Bank
    HCC No 53 of 2004
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; interim relief sought under Order 40(1)(a) and (b) of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Desterio Andadi Oyatsi & 2 others v Stephen Charo Nzai & 2 others [2021] KEELC 100 (KLR)", Case Analysis (2021). Not stated in the judgment (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/100/eng@2021-12-14

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