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ELCDismissedCivil Suit No 157 of 2015· [2021] KEELC 3194 (KLR)

Mode of Track Fast Track Kefwa Makoyi v Chesikaki Coffee Farmers Society Ltd [2021] KEELC 3194 (KLR)

High Court of Kenya (Environment and Land jurisdiction) at Bungoma
27 May 2021
3,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed a 60-year-old land payment claim because no clear agreement existed and the Limitation of Actions Act barred it.

What this practically means

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Executive summary

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The plaintiff, acting in person, filed a plaint on 22nd August 2014 against the defendant society seeking payment for the time the defendant had allegedly operated on his land parcel MALAKISI/EAST SASURI/499 since 1954, or alternatively that the defendant vacate, together with costs and interest. He relied on a Land Certificate showing registration on 25th November 1968 and witness statements alleging an oral promise of payment once the factory became financially stable. The defendant denied occupying the suit land, asserting it owns its own parcel MALAKISI/EAST SASURI/739, and sought dismissal. By consent, two survey reports were prepared: the County Surveyor found a distinct common boundary with no encroachment on either side, while the plaintiff's own surveyor's report was internally inconsistent and failed to quantify any encroachment. The court held that the claim, whether to enforce an agreement to pay or to recover the land, was barred by the Limitation of Actions Act, the cause of action having arisen in 1954 and suit filed some sixty years later. Although limitation was not pleaded in the defence, the court held it was a jurisdictional issue it could raise suo moto, following Court of Appeal and Supreme Court authority. On trespass, which as a continuing tort would not be defeated by limitation, the plaintiff failed to discharge the burden of proving encroachment. The suit was accordingly dismissed with costs.

Key legal issues

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01

Proof of an agreement to pay for the suit land

Holding

No enforceable agreement was established; the plaintiff pleaded only an obligation to pay an undisclosed amount

Reasoning

An agreement for sale must set out the obligations of both parties clearly, and consideration must not be left to conjecture. The plaintiff simply pleaded that the defendant agreed to pay him later, without indicating the amount. None of his witnesses alluded to what the defendant was to pay, so the alleged agreement was too vague and uncertain to be enforceable.

p. 3
02

Whether the claim is statute-barred and whether limitation may be raised suo moto

Holding

The claim to enforce a contract or recover land is time-barred, and the court may raise limitation on its own motion as a jurisdictional issue despite the absence of a limitation plea in the defence

Reasoning

The cause of action arose in 1954 and suit was filed in 2014, about sixty years later, far beyond the six-year period for contract claims and the twelve-year period for recovery of land. Although limitation was not pleaded, the Court of Appeal in Anaclet Kalia Musa established that limitation is a jurisdictional question a court may raise suo moto, and this Court has consistently taken that route.

p. 4
03

Whether the defendant trespassed onto the suit land

Holding

Trespass was not proved; both survey reports, properly read, show no encroachment onto the suit land

Reasoning

The County Surveyor found a distinct common boundary with no encroachment on either side. The plaintiff's own surveyor stated the defendant's boundaries were well defined but inconsistently suggested the society's portion fell within the suit land without quantifying any encroachment. The plaintiff bore the burden of proving trespass and the evidence fell far short of the required standard.

p. 5

Legal principles established

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  • Limitation is a jurisdictional question which the court may raise suo moto even if not pleaded
  • An action founded on contract may not be brought after six years from when the cause of action accrued
  • An action to recover land may not be brought after twelve years
  • Trespass is a continuing tort giving rise to a fresh cause of action day to day, and is not defeated by limitation
  • An agreement for sale of land must be clear and unambiguous; consideration cannot be left to conjecture

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Limitation of Actions ActSection 4(1)(a)
  • Limitation of Actions ActSection 7
  • Civil Procedure RulesOrder 2 Rule 4(1) (also referred to as Order VI Rule 4(1))

Cases cited (8)

  • ABDULLAHI IBRAHIM AHMED (suing as the Personal Representative of the Estate of ANISA SHEIKH HASSAN (deceased) v LEM LEM TEKLUE MUZOLO
    2013 eKLR
  • ANACLET KALIA MUSA v A-G & OTHERS
    C.A. Civil Appeal No 111 of 2017 (2020 eKLR)
  • NASRA IBRAHIM IBREN v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & OTHERS
    Supreme Court Petition No 19 of 2018
  • IGA v MAKERERE UNIVERSITY
    1972 E.A 62
  • EDWARD LILUMBI & 3 OTHERS v DIPHINA AHEMBELWA & 6 OTHERS
    2019 eKLR
  • FRANCIS SIMIYU WEKESA (represented by ELIUD SAHENYI) v JOSEPH NAMASAKA NATO & 10 OTHERS
    2020 eKLR
  • PAULINE WANJIRU THUO v DAVID MUTEGI NJURU
    C.A Civil Appeal No 278 of 1998
  • NGURUMAN LTD v SHAMPOLE GROUP RANCH & OTHERS
    C.A Civil Appeal No 73 of 2004 [2007 eKLR]
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land) at Bungoma over the suit land MALAKISI/EAST SASURI/499

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, "Mode of Track Fast Track Kefwa Makoyi v Chesikaki Coffee Farmers Society Ltd [2021] KEELC 3194 (KLR)", Case Analysis (2021). Civil Suit No 157 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3194/eng@2021-05-27

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