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ELCDismissedELC suit (Nairobi) – suit number not stated in the judgment· [2021] KEELC 2989 (KLR)

Aaron Tafari Ouko & another (suing as the Administrators of the Estate of the late Jason Atinda Ouko) v John Mworia [2021] KEELC 2989 (KLR)

Environment and Land Court
20 May 2021
KBK. BOR
2,915 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a family's land claim because whether the lawyer opposing them entered the land in 1998 or later needs full trial evidence to decide.

What this practically means

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Executive summary

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The Defendant, a senior advocate, brought an application dated 8/5/2019 seeking to strike out the Plaintiffs' suit as an abuse of court process on the ground that the claim in trespass was time-barred under Section 4 of the Limitation of Actions Act, and the claim for recovery of land was time-barred under Section 7, having taken possession of the suit land in 1998 pursuant to a purchase from the Omwengas. In the alternative he sought dismissal for want of prosecution. The Plaintiffs, administrators of the Estate of the late Jason Atinda Ouko, opposed the application. They contended the 1998 sale agreement relied on by the Defendant was a forgery executed after the deceased's death in 1996, as supported by a forensic document examiner's report; that they became aware of the Defendant's presence on the land only in 2007; and that they could not prosecute the suit because the Defendant and others had challenged their grant of letters of administration in High Court Succession Cause No. 353 of 1997, which was only resolved in April 2018 by Achode J, who preserved the suit land pending the ELC suits. The court held that the date the Defendant entered the land was a disputed question requiring evidence at trial before limitation could be computed, and that the Plaintiffs could not reasonably prosecute the suit until the administration dispute was settled. The application dated 8/5/2019 was dismissed, parties were directed to expedite the hearing, and costs of the application were placed in the cause.

Key legal issues

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01

Whether the suit was time-barred under Sections 4 and 7 of the Limitation of Actions Act

Holding

Not determined at the interlocutory stage; the date of the Defendant's entry into the land is disputed and must be established by evidence at trial

Reasoning

The Defendant anchored his limitation claim on an agreement dated 15/12/1998, but the Plaintiffs dispute it as having been executed after the deceased died in 1996, and the forensic document examiner's report supports that dispute. The Plaintiffs also assert they only became aware of the Defendant's presence in 2007. Computation of limitation time requires factual findings the court cannot make on affidavit evidence at a striking-out stage.

p. 3
02

Whether the suit should be dismissed for want of prosecution under Order 17 Rules 2 and 3 of the Civil Procedure Rules

Holding

Dismissal refused; the delay was explained by the pending challenge to the Plaintiffs' grant of letters of administration, only resolved in 2018

Reasoning

The Defendant participated in the succession cause challenging the Plaintiffs' capacity as administrators, which was only resolved by Achode J in April 2018, with directions preserving the suit land pending the ELC suits. The Plaintiffs could not prosecute the suit as administrators until that issue was settled, so the inactivity was not culpable.

p. 3
03

Whether the application was res judicata given the earlier application dated 3/10/2011

Holding

The court did not decide the res judicata point; it resolved the application on the limitation and want of prosecution issues

Reasoning

The Plaintiffs argued the issues were litigated in the 3/10/2011 application to discharge injunction orders; the Defendant contended the ingredients of Section 7 of the Civil Procedure Act were not met. The court did not make a finding on this issue, instead dismissing the application because limitation was a triable issue and the delay was explained.

p. 3

Legal principles established

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  • Striking out a suit is a radical remedy to be resorted to only in clear and obvious cases
  • Limitation and adverse possession turn on the date of entry, which must be proved by evidence at trial and cannot be resolved on a striking-out application

Court orders

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  1. 1.The application dated 8/5/2019 is dismissed
  2. 2.Parties are directed to take steps to have the case heard and determined expeditiously
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Limitation of Actions ActSection 4
  • Limitation of Actions ActSection 7
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 2 Rule 15(1)(d)
  • Civil Procedure RulesOrder 17 Rules 2 and 3
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 7
  • Land Registration ActSection 28(h)
  • Land ActSection 7(d)

Cases cited (1)

  • Dickson Ngige Ngugi v Consolidated Bank Limited (Formerly Jimba Credit Corporation Limited & Another)
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Limitation of Actions Act and Civil Procedure Rules invoked (specific enabling provision not stated)

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, "Aaron Tafari Ouko & another (suing as the Administrators of the Estate of the late Jason Atinda Ouko) v John Mworia [2021] KEELC 2989 (KLR)", Case Analysis (2021). ELC suit (Nairobi) – suit number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2989/eng@2021-05-20

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