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ELCDismissedNot stated in judgment (interlocutory application dated 21 September 2020 filed with the plaint)· [2021] KEELC 3281 (KLR)

Mkuzi Tsama Mwenye & 5 others v Julius Mkauma Tsama & 3 others [2021] KEELC 3281 (KLR)

Environment and Land Court of Kenya
11 May 2021
MSMunyao Sila
1,768 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa dismissed landowners' bid for an injunction, finding they offered no proof of fraud and filed suit too late.

What this practically means

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Executive summary

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The plaintiffs moved the court by a notice of motion dated 21 September 2020, filed with the plaint, seeking injunctions to restrain the 1st and 2nd defendants from evicting them or dealing with parcels Mgumopatsa/Mazeras/130 and 135, a mandatory injunction, cancellation of the defendants' registration as owners, and orders directing the National Land Commission and anti-corruption officers to investigate the title transactions. The plaintiffs claimed ancestral ownership of over 70 years and alleged that the adjudication officer fraudulently registered the 1st defendant's deceased father, Tsama Mkuzi Saha, in place of Saha Mkuzi Kango. The 1st and 2nd defendants opposed the application and counterclaimed for vacant possession, producing titles to both parcels issued in 2005 - Plot 130 in three joint names each with a one-third share and Plot 135 in the sole name of their father - together with a confirmed grant distributing the estate to them. The court held that no fraud was proved: Plot 130 was jointly owned including the plaintiffs' fathers, and Plot 135's ownership had already been upheld by the Land Disputes Tribunal (adopted by the Magistrate's Court at Kaloleni) and in Malindi ELC No. 163 of 2013. The court also noted a triable issue under Section 7 of the Limitation of Actions Act, the titles being over 12 years old. Finding no prima facie case, the court declined all interlocutory orders, held that the NLC's mandate covers public land only, and dismissed the application with costs, leaving the plaintiffs to prove their claims at trial without the benefit of an injunction.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a probability of success

Holding

They did not; allegations of fraudulent acquisition of title were unsupported, and Plot 130 is jointly owned while Plot 135 ownership was already settled in prior litigation

Reasoning

The title to Plot 130 shows three owners including the plaintiffs' fathers, so fraud could not be established against the 1st and 2nd defendants as sole owners. The ownership of Plot 135 had been determined by the Land Disputes Tribunal, adopted by the Magistrate's Court, and in Malindi ELC No. 163 of 2013, with no finding of impropriety. The plaintiffs offered only oral, undocumented allegations.

p. 3
02

Whether the plaintiffs' claim is time-barred

Holding

There is an issue to be tried whether the claim is time-barred, since titles issued in 2005, more than 12 years before suit

Reasoning

Counsel for the 1st and 2nd defendants raised limitation. Titles to the suit lands were issued in 2005, and the suit filed in 2020 exceeded the 12-year period prescribed by Section 7 of the Limitation of Actions Act for land ownership claims, compounding the weakness of the plaintiffs' case at the interlocutory stage.

p. 3

Legal principles established

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  • A claim over ownership of land must be filed within 12 years under Section 7 of the Limitation of Actions Act
  • The mandate of the National Land Commission extends to public land, not private land

Court orders

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  1. 1.The application dated 21 September 2020 is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 7
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels Mgumopatsa/Mazeras/130 and 135

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, "Mkuzi Tsama Mwenye & 5 others v Julius Mkauma Tsama & 3 others [2021] KEELC 3281 (KLR)", Case Analysis (2021). Not stated in judgment (interlocutory application dated 21 September 2020 filed with the plaint). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3281/eng@2021-05-11

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