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ELCDismissedNot stated in the ruling· [2021] KEELC 3689 (KLR)

Kenneth Kipkosgei Kemboi & another v Leah Tuwei & 5 others [2021] KEELC 3689 (KLR)

Environment and Land Court
15 April 2021
MOM. A. Odeny
2,947 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that a limitation defence based on disputed facts and fraud claims cannot end a case early; it must go to full trial.

What this practically means

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Executive summary

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The defendant raised a preliminary objection dated 5th October 2020 seeking striking out of the plaintiffs' suit on two limbs: first, that the suit was time barred under section 7 of the Limitation of Actions Act Cap 22, the claim for eviction being an action to recover land filed more than 12 years after the cause of action accrued; and second, that the suit was frivolous, vexatious and an abuse of process. Counsel for the defendants computed time from the registration of Clementina Jepkurgat Kogo by transmission on 5th August 1981 over Nandi/Baraton/104, arguing that the 1st defendant, who entered the land in 1972 and claimed adverse possession, acquired the land when the limitation period expired on 5th August 1993. The plaintiffs countered that the objection failed the Mukisa Biscuit threshold since it depended on contested facts, particularly the pleaded fraud challenging the plaintiffs' 2017 registration, and that under section 26 limitation does not run until fraud is discovered. The court, per M. A. Odeny J, framed two issues: whether the claim was time barred and whether the objection met the Mukisa Biscuit threshold. Holding that fraud must be specifically pleaded and proved by evidence and cannot be determined on a preliminary objection, and that the ownership history and onset of adverse possession required a full hearing, the court found the objection devoid of merit and dismissed it with costs to the plaintiffs, allowing the suit and counterclaim to proceed to hearing.

Key legal issues

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01

Whether the suit is time barred under section 7 of the Limitation of Actions Act

Holding

The limitation question could not be resolved as a preliminary point because it depends on contested facts, including the history of ownership and when time began to run for adverse possession

Reasoning

The court found that the defendant's narration of the ownership history - transmission in 1981 and subsequent changes of ownership - necessitated a full hearing to ascertain ownership, when time started running for adverse possession, and whether fraud attended acquisition of title. Section 7 was held applicable only in appropriate circumstances, not where facts require evidence.

p. 4
02

Whether the preliminary objection met the Mukisa Biscuit threshold

Holding

The objection did not meet the threshold because it required ascertainment of facts, notably the pleaded fraud

Reasoning

Citing Mukisa Biscuit, the court reiterated that a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where any fact has to be ascertained. The fraud allegations and disputed dates of registration required evidence at trial.

p. 4

Legal principles established

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  • Fraud must be specifically pleaded and proved by evidence and cannot be determined on a preliminary objection
  • Where there are facts to be proved or contested issues, limitation cannot be determined as a preliminary point and the matter must proceed to full hearing

Court orders

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  1. 1.The preliminary objection dated 5th October 2020 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiffs

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 13(1)
  • Limitation of Actions Actsection 16
  • Limitation of Actions Actsection 17
  • Limitation of Actions Actsection 26(a)

Cases cited (8)

  • Joseph Kamau Gichuki (suing as the administrator of the estate of Gichuki Chege (deceased) vs James Gatheru Mukora & Anor
    [2019] eKLR
  • John Nioroge Gitau & 2 others v David Mwangi Gitau & 3 others
    [2020] eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) E.A. 696
  • George Oraro vs Barak Eston Mbaja
    (2005) eKLR
  • Silvester K. Kaitany vs Nyayo Tea Zones Development Cooperation Anor vs National Land Commission Anor
    (2020) eKLR
  • Justus Tureti Obara vs Peter Koipeitai
    [2014] eKLR
  • Kivanga Estates Limited vs National Bank of Kenya Limited
    [2017] eKLR
  • Wilmot Mwadilo, Edwin Mwakaya, Amos Nyatta Patrick Mbinga vs Eliud Timothy Mwamunga Sagalla Ranchers Limited
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit Nandi/Baraton/104 and subdivisions); preliminary objection under civil procedure and the Limitation of Actions Act Cap 22

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, "Kenneth Kipkosgei Kemboi & another v Leah Tuwei & 5 others [2021] KEELC 3689 (KLR)", Case Analysis (2021). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3689/eng@2021-04-15

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