John Kipkorir Ruto (suing as the personal representative of the estate of Kiprto Arap Maina (deceased) v County Government of Kericho & 3 others [2021] KEELC 3152 (KLR)
The bottom line
#The court threw out a family's bid to reclaim council-held Kericho land because they had no title documents and waited over 12 years.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
Applicant failed to establish a prima facie case; no evidence of his father's proprietorship of Kericho/Kapsuser/1112 and locus standi unsupported
The Applicant produced only a green card for the resultant subdivisions in the name of County Council of Kipsigis and no evidence of original ownership. He cited a succession cause without annexing the citation or letters ad litem, so the court doubted his locus. Further, the alleged transfer occurred in 1998, outside the twelve-year limitation period under section 7 of the Limitation of Actions Act. Since Giella conditions are sequential, failure of the first limb ended the enquiry.
Judgment in default against the Government
Refused because service did not comply with section 13 of the Government Proceedings Act and Order 5 rule 9 of the Civil Procedure Rules
The affidavit of service relied on electronic service to a general e-mail address serving all ministries, without indicating the e-mail address or annexing proof of transmission. The court held such service improper against the Government. As the 1st Defendant had since entered appearance through counsel, no prejudice would arise from granting leave to file a defence.
Leave to file defence out of time
Granted; no prejudice to the Applicant as joinder/participation assists determination of the real matters in question
Relying on DIG-TEC Images, the court noted that a party who assists in determining the real matters in question may participate at any stage. Since the 1st Defendant had entered appearance through Kemboi Chambers Advocates on 2nd February 2021, granting 14 days to file a defence occasioned no prejudice, and parties were to comply with Order 11 directions.
Legal principles established
#- The Giella conditions for an interlocutory injunction are sequential; failure of the first condition disposes of the application
- A certificate of title is conclusive evidence of proprietorship under section 26(1) of the Land Registration Act
- An action to recover land may not be brought after twelve years from when the right accrued
- Service on the Government must comply with section 13 of the Government Proceedings Act; e-mail to a general address is not proper service
Court orders
#- 1.Both the Plaintiff's applications dated 13th October 2020 and 11th January 2021 dismissed
- 2.Costs in the cause
- 3.Leave granted to the 1st Defendant to file its defence within 14 days of delivery of the ruling
- 4.Parties to comply with Order 11 of the Civil Procedure Rules within the next 21 days for the hearing of the main suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Civil Procedure Act and the Land Registration Act (enabling provisions cited in the applications)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kipkorir Ruto (suing as the personal representative of the estate of Kiprto Arap Maina (deceased) v County Government of Kericho & 3 others [2021] KEELC 3152 (KLR)", Case Analysis (2021). Not stated in judgment (ELC suit, Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3152/eng@2021-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.