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ELCDismissed· [2021] KEELC 2099 (KLR)

Inoi Farmers Co-operative Society Ltd v Kaitheri Housing Co-operative Society Ltd [2021] KEELC 2099 (KLR)

Environment and Land Court
23 July 2021
ECE.C. Cherono
2,647 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a co-operative's bid to recover land because it waited too long—land claims in Kenya must be filed within twelve years.

What this practically means

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Executive summary

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The Appellant appealed the Co-operative Tribunal's judgment of 18 October 2016, which had dismissed its counterclaim alleging that the transfer of Land Parcels Inoi/Kerugoya/252, 688 and 689 to the Respondent housing society was fraudulent. The Appellant contended that the transfers, effected following joint management committee meetings in 1991 and 1992, lacked the AGM resolution required by Sections 27 and 28 of the Co-operative Societies Act, contravened the Land Control Act and the society's by-laws, and lacked consideration; it sought cancellation of titles and reversion of the properties. The Respondent maintained there was no fraud, the transfer was a gift between societies with identical membership, and the claim was stale. On appeal, E.C. Cherono, ELC Judge, restated the first appellate duty per Selle v Associated Motor Boat Co and Ephantus Mwangi v Duncan Mwangi, then turned to limitation. The transfers were registered in 1994 and 1997, while the counterclaim was filed in 2011, fourteen to seventeen years later. Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from accrual of the right, and the court held the registration dates triggered the period. The Appellant's plea of fraud-based ignorance under Section 26 failed because the Appellant itself was the transferor and a juristic person with capacity to sue under Section 12 of the Co-operative Societies Act, and thus could not claim unawareness of its own transaction. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Duty of a first appellate court

Holding

The first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses

Reasoning

Relying on Selle v Associated Motor Boat Co and Ephantus Mwangi v Duncan Mwangi, the court restated that an appeal by way of retrial requires independent evaluation of the evidence, subject to deference on credibility findings since the Tribunal saw and heard the parties.

p. 3
02

Whether the counterclaim was time-barred

Holding

The counterclaim for recovery of land, filed 14-17 years after the transfers were registered, was barred by Section 7 of the Limitation of Actions Act

Reasoning

The transfers were registered in 1994 and 1997; the counterclaim was lodged in 2011. The court held registration dates trigger the limitation period. The twelve-year period for recovery of land had lapsed, rendering the claim statute barred notwithstanding the merits.

03

Whether Section 26 (fraud) could save the claim

Holding

No, because the Appellant, being the transferor and a juristic person, could not claim ignorance of its own transaction

Reasoning

Section 26 postpones limitation where fraud is concealed, but the suit was brought by the society itself as transferor, not by aggrieved members. Section 12 of the Co-operative Societies Act vests capacity to sue in the society, so it was fixed with knowledge of the transfers it effected.

Legal principles established

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  • An action to recover land may not be brought after the end of twelve years from when the right of action accrued
  • A transferor society, being a juristic person capable of suing and being sued, cannot claim ignorance of a transaction it itself effected
  • The object of limitation statutes is to prevent stale claims and protect defendants who have lost evidence for their defence

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Co-operative Societies ActSections 27 and 28
  • Co-operative Societies Act, No. 12 of 1997Section 12
  • Land Control ActNot specified
  • Limitation of Actions Act, Cap 22Section 7
  • Limitation of Actions Act, Cap 22Section 26

Cases cited (6)

  • Selle Vs Associated Motor Boat Co.
    [1968] EA 123
  • Ephantus Mwangi and Another Vs Duncan Mwangi
    Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278
  • Mehta Vs Shah
    [1965] E.A 321
  • Gathoni Vs Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Central Bank of Kenya Vs Trust Bank Ltd & 4 Others
    Nairobi Civil Appeal No. 215 of 1991
  • Rosemary Wanjiku Muriithi Vs George Maina Ndinwa
    Nyeri Civil Appeal No. 9 of 2018
On appeal from
Co-operative Tribunal
Not stated
Jurisdiction invoked
First appeal from the Co-operative Tribunal (statutory appeal; specific provision not cited in the judgment)

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, "Inoi Farmers Co-operative Society Ltd v Kaitheri Housing Co-operative Society Ltd [2021] KEELC 2099 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2099/eng@2021-07-23

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