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ELCDismissed· [2021] KEELC 865 (KLR)

Richard Kidinga Kamai v Benjamin Machayo Barusi [2021] KEELC 865 (KLR)

Environment and Land Court
21 October 2021
EAE. Asati
1,610 words in judgment
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The bottom line

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A Kenyan court ruled that land claims based on trust are not blocked by the usual 12-year time limit, so the case proceeds to full trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Vihiga (E. Asati, J) determines a preliminary objection dated 7 June 2021 by which the Defendant sought to strike out the Plaintiff's suit for offending section 7 of the Limitation of Actions Act, Cap 22, which bars actions to recover land after twelve years. The Defendant, registered owner of the suit land since 7 July 1970, argued the Plaintiff's claim, brought some forty-eight years after the registration, was time-barred and that no leave to sue out of time had been sought, relying on Richard Oduol Opole v Commissioner of Lands. The Plaintiff, relying on Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, contended the objection was not a pure point of law since it required analysis of the evidence. The court framed three issues: whether the matters raised constituted a proper preliminary objection; whether the suit offended section 7; and costs. It held that although raised after the close of the Plaintiff's case, the objection arose from the face of the pleadings and had been foreshadowed in the defence, so it was properly before the court. On the merits, however, the claim was founded on trust; under section 20 of the Limitation of Actions Act, limitation periods do not apply to a beneficiary's action to recover trust property, a position supported by Stephens v Stephen. Whether the trust exists remains for trial. The preliminary objection was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the limitation plea constituted a proper preliminary objection despite being raised after the close of the plaintiff's case

Holding

It was a proper preliminary objection because the point of law germinated from the face of the pleadings and had been pleaded in the defence

Reasoning

Although the objection was raised late, the court found the matter arose from the pleadings, not from testimony, and the defence had given notice of a preliminary objection on limitation. The court noted an objection ought to be raised at the onset, but this did not defeat it. It applied the Mukisa Biscuit definition of a preliminary objection as a pure point of law.

p. 2
02

Whether section 7 of the Limitation of Actions Act bars a claim to land based on trust

Holding

No. Section 20 of the Act exempts actions by a beneficiary under trust from the limitation periods, so the objection failed

Reasoning

Though the claim was for recovery of land, it was founded on trust pleaded in the plaint. Section 20 provides that no limitation period applies to a beneficiary's action to recover trust property or for fraudulent breach of trust. Whether the trust exists is the substantive issue for trial after hearing both parties.

p. 3

Legal principles established

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  • Limitation periods under the Limitation of Actions Act do not apply to an action by a beneficiary under trust to recover trust property from the trustee
  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct

Court orders

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  1. 1.The Preliminary Objection fails and is dismissed
  2. 2.Costs of the Preliminary Objection to the Plaintiff

Authorities

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Legislation

  • Constitution of KenyaArticles 50, 27 and 159
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 20
  • Civil Procedure RulesOrder 2 Rule 9

Cases cited (3)

  • Richard Oduol Opole Vs Commissioner of Lands and 2 Others
    (2015) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Limited
    (1969) E.A 696
  • Stephens and 6 others -vs- Stephen & Another
    [1987] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (suit for recovery of land held in trust)

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, "Richard Kidinga Kamai v Benjamin Machayo Barusi [2021] KEELC 865 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/865/eng@2021-10-21

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