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ELCStruck OutNot stated in judgment· [2021] KEELC 1338 (KLR)

Edwin Kipkemoi Mutai 71 others v Alfred Owour & 4 others [2021] KEELC 1338 (KLR)

Environment and Land Court
15 October 2021
AOAntony Ombwayo
858 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A family claiming land their relatives occupied since 1973 lost because a High Court had already settled ownership and they waited over 15 years to challenge it.

What this practically means

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Executive summary

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The plaintiffs, members of the family of Kibinot Rongoei, sued claiming to be legal and bona fide owners of Kisumu/Songhor/487 and 490, parcels said to have been carved out of Kisumu/Songhor/3106 when it was converted into a Settlement Scheme in 1973. They alleged they had been in continuous possession since 1973, constructing permanent structures and farming, and that titles processed in 1986 for the 1st and 2nd Defendants were fraudulent. They sought declarations of ownership, a permanent injunction, and cancellation of the defendants' titles. The defendants raised a preliminary objection contending that the plaintiffs lacked locus to sue in person over claims arising from the estate of Kibinot Rongoei, that the claim was time barred under the Limitation of Actions Act, and that the suit was an abuse of process because the plaintiffs failed to disclose or enjoin themselves in High Court Nairobi Civil Case No. 2595 of 1976 (Alfred Owuor v Yuda Owuro & AG), in which ownership of the suit land had been conclusively determined. The court upheld the objection in part. On locus standi it held the plaintiffs claimed in their own right as settlers in possession, so no grant of letters of administration was needed. However, the High Court had conclusively determined ownership, and the proper remedy was review, not a fresh plaint; the court was functus officio and the plaintiffs' delay of over 15 years was inordinate, inexcusable and unexplained. The suit was struck out, with costs to the defendants. The ruling was delivered electronically pursuant to COVID-19 court directions.

Key legal issues

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01

Functus officio

Holding

The High Court had conclusively determined ownership of the suit properties; the plaintiffs cannot seek to revisit that decision through a fresh plaint

Reasoning

The court found that ownership of Kisumu/Songhor/3106 and its subdivisions was conclusively determined in Nairobi Civil Suit No. 2595 of 1976 with an order issued and executed. A plaint is not a recognized procedure for reviewing a High Court decision, and the court is therefore functus officio in respect of the matter.

p. 2
02

Limitation and laches

Holding

The plaintiffs came to court too late, more than 15 years after the High Court judgment, and the delay is inordinate and inexcusable

Reasoning

The High Court judgment of 24 October 1997 was issued on 12 November 1997 and re-issued on 22 May 2007. The plaintiffs were not claiming adverse possession, so limitation applied; their delay of more than 15 years was inordinate, inexcusable and unexplained, constituting laches.

p. 2
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Locus standi

Holding

The plaintiffs have locus to sue in person as settlers in possession, not as dependants of the deceased Kibinot Rongoei

Reasoning

The defendants objected that the plaintiffs lacked capacity to claim through the estate of Kibinot Rongoei without a grant. The court held the claim was based on the plaintiffs' own possession for over 12 years, so no grant of letters of administration was required.

p. 2

Legal principles established

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  • A party seeking to challenge a High Court order that has been executed must apply for review rather than file a fresh suit
  • A settler in possession of land for over 12 years need not take out letters of administration intestate; such a claim is personal, not derivative of a deceased forbear
  • A court becomes functus officio after judgment, and inordinate unexplained delay (over 15 years) amounts to laches

Court orders

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  1. 1.The suit is struck out on the grounds that the court is functus officio and the plaintiffs are guilty of laches
  2. 2.Costs to the defendants

Authorities

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Legislation

  • Limitation of Actions ActCap 22 Laws of Kenya (general)

Cases cited (1)

  • Alfred Owuor Vs Yuda Owuro & Hon Attorney General
    High Court Nairobi Civil Case No. 2595 of 1976
Jurisdiction invoked
Not stated in judgment (Environment and Land Court, Kisumu)

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, "Edwin Kipkemoi Mutai 71 others v Alfred Owour & 4 others [2021] KEELC 1338 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1338/eng@2021-10-15

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