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ELCStruck OutNot stated in the judgment (Plaintiff's suit, Kisii Environment and Land Court)· [2021] KEELC 1715 (KLR)

Kenya Farmers Association v Quasar Limited & 5 others [2021] KEELC 1715 (KLR)

Environment and Land Court
30 September 2021
3,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Filing a lawsuit in the wrong Kenyan court does not pause limitation deadlines — Quasar Limited lost its fraud claim by waiting seventeen years.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (Onyango J) determined three applications by the 1st, 3rd and 4th Defendants seeking to be struck out from a suit by Quasar Limited concerning land parcel KISII MUNICIPALITY/BLOCK 111/143. The Plaintiff alleged it was the registered lessee, that its name was wrongfully replaced in the register, and that the Commissioner of Lands and the Municipal Council of Kisii erroneously allocated the property to the 2nd Defendant, from whom it passed to the 1st Defendant, was charged to the 3rd Defendant to secure loans of about Kshs 27 million, and was sold to the 4th Defendant in 2011 for Kshs 25 million. The Plaintiff sought restitution of a restriction, eviction and damages, pleading fraud. The court framed two issues: whether the 1st, 3rd and 4th Defendants should be struck out, and whether the suit was statute-barred. Prioritising limitation as a jurisdictional question, the court held the suit founded on fraud was governed by the three-year period in section 4(2) of the Limitation of Actions Act; the fraud occurred in 2002, so limitation lapsed in 2005. The Plaintiff's argument that time stopped during the pendency of Kisii CMCC No. 927 of 2002, struck out for want of pecuniary jurisdiction on 3 April 2019, was rejected on the authority of Donald Osewe Oluoch v Kenya Airways and Lilian Njeri Muranja: limitation in Kenya is purely statutory and time does not stop running because a case is filed in a court without jurisdiction. The trespass claim based on the alleged 2014 entry was also time-barred. The court struck out the entire suit with costs to the 1st, 3rd and 4th Defendants.

Key legal issues

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01

Whether the pendency of Kisii CMCC No. 927 of 2002, later struck out for want of pecuniary jurisdiction, suspended the limitation period

Holding

It did not; time did not stop running during the pendency of the suit in the lower court

Reasoning

The court applied the Court of Appeal decision in Donald Osewe Oluoch v Kenya Airways Limited, which held there is no statutory provision in Kenya excluding time spent prosecuting a proceeding in a court lacking jurisdiction, and Lilian Njeri Muranja, holding that the mere filing of a suit does not stop statutory periods from running. Limitation is governed solely by the Limitation of Actions Act, Cap 22. The plaintiff never appealed or otherwise contested the lower court order; it merely waited from 2002 to 2019.

p. 4
02

Whether the plaintiff's fraud claim filed in 2020 was time-barred under section 4(2) of the Limitation of Actions Act

Holding

Yes; the fraud occurred in 2002 and the three-year limitation period lapsed in 2005

Reasoning

The suit was founded on fraud, a tort, to which section 4(2) prescribes a three-year limitation period. The fraudulent acts, including issuance of title to the 1st and 2nd Defendants, occurred in November 2002. The plaintiff's argument that time stopped when the lower court suit was struck out on 3 April 2019 was rejected as there is no statutory basis for excluding that time in Kenya. The claim of trespass in April 2014 was also held time-barred.

p. 3
03

Whether the defendants' limitation defence required a claim of adverse possession

Holding

No; the 12-year dispossession argument would only apply to an adverse possession claim, which no defendant made

Reasoning

Counsel for the plaintiff argued that a limitation defence could only be raised where the party had dispossessed the owner for more than 12 years, contending dispossession occurred in 2014. The court held this submission would only be correct if the defendants claimed the property by adverse possession, which none did; the statutory defence under section 4(2) applied instead.

p. 4

Legal principles established

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  • Limitation of actions in Kenya is entirely a matter of statute and time does not stop running merely because a party has filed a case in a court without jurisdiction

Court orders

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  1. 1.The entire suit was struck out with costs to the 1st, 3rd and 4th Defendants

Authorities

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Legislation

  • Civil Procedure Actsections 1A and 1B
  • Limitation of Actions Actsection 4(2)
  • Limitation of Actions Actsection 39
  • Limitation of Actions Actsection 31 (as quoted)

Cases cited (3)

  • Karani Chepsongi v Kipsetion Chebowo
    (2015) eKLR
  • Donald Osewe Oluoch v Kenya Airways Limited
    (2017) eKLR
  • Lilian Njeri Muranja & John Muranja v Virginia Nyambura Ndiba & Kajiado County Council
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land parcel KISII MUNICIPALITY/BLOCK 111/143

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Farmers Association v Quasar Limited & 5 others [2021] KEELC 1715 (KLR)", Case Analysis (2021). Not stated in the judgment (Plaintiff's suit, Kisii Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1715/eng@2021-09-30

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