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ELCPartially AllowedNot stated in the judgment as provided· [2021] KEELC 3806 (KLR)

Josphat Mbogo Kaguongo & another v Geoffrey Muriuki Kimondo & 3 others [2021] KEELC 3806 (KLR)

Environment and Land Court
24 March 2021
3,124 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 blocked any sale or transfer of disputed family land, ruling that customary trust claims cannot be defeated by limitation periods or earlier unenforceable judgments.

What this practically means

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Executive summary

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The plaintiffs, biological sons of the late Kaguongo Nyaga, moved the Environment and Land Court at Kerugoya by Notice of Motion dated 27th December 2018 under Order 40 Rules 1 and 2 of the Civil Procedure Rules seeking a temporary injunction restraining the defendants from transferring, selling, leasing, disposing of, alienating or charging land parcels MWERUA/KANYOKORA/937, 938, 939 and 940 pending hearing of the suit, in which they claim the defendants hold the parcels in trust for them. They aver that the parent parcel, MWERUA/KANYOKORA/117, was clan and ancestral land registered in the name of the eldest stepbrother, the late Johana Ndegwa Nyaga, in trust for Kaguongo Nyaga, and was fraudulently transferred, subdivided and conveyed to the defendants during the pendency of High Court Case No. 14 of 1991. The respondents opposed, filing two Notices of Preliminary Objection: that the suit is res judicata/sub judice given Nyeri ELC No. 56 of 2016 (formerly HCCC No. 114 of 1991), in which Justice Kasango ruled on 6th July 2007, and that the 3rd defendant's claim is time barred. Applying the Mukisa Biscuit test for preliminary objections, Section 7 of the Civil Procedure Act and Section 26 of the Limitation of Actions Act, and relying on Macharia Kihari v Ngigi Kihari and Stephens v Stephens, the court held that customary trust claims are not subject to limitation and that the earlier ruling was incapable of enforcement since the parcel had been subdivided and no decree extracted. Both objections were dismissed with costs in the cause, and the interim injunction was granted in terms of prayers (2) and (3).

Key legal issues

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01

Whether the suit is res judicata/sub judice given the Nyeri ELC No. 56 of 2016 (formerly HCCC No. 114 of 1991) judgment

Holding

The preliminary objection was dismissed; the prior ruling was incapable of enforcement because the original parcel had been subdivided, no decree was extracted, and not all prayers in the plaint were determined, so res judicata was not established

Reasoning

Applying Section 7 of the Civil Procedure Act, the court examined the 6th July 2007 ruling of Lady Justice Kasango. The court noted that by the time the ruling adopting the LDT award was delivered, parcel MWERUA/KANYOKORA/117 had already been subdivided, making the judgment incapable of enforcement, which explained why no decree had been extracted. The proceedings of LDT Case No. 23 of 1997 were not availed, and not all prayers in the plaint were determined, so the requirements of Section 7 were not satisfied.

p. 4
02

Whether the plaintiffs' claim is time barred under the Limitation of Actions Act

Holding

The limitation preliminary objection failed because a claim for determination of customary trust in land is not subject to limitation

Reasoning

The court applied Section 26 of the Limitation of Actions Act on fraud and mistake, then held that the claim, being for a declaration that the defendants hold the suit parcels in trust, is not subject to limitation. Relying on Macharia Kihari v Ngigi Kihari and Stephens & others v Stephens, the Court of Appeal authorities establish that limitation provisions do not apply to trusts arising under customary law, where land is held in trust even for decades.

p. 4
03

Whether a temporary injunction should issue over parcels 937, 938, 939 and 940 pending the hearing of the suit

Holding

The Notice of Motion was found merited and interim injunction granted in terms of prayers (2) and (3)

Reasoning

Having considered the affidavit evidence in support and opposition and the applicable law, the court found the plaintiffs entitled to the equitable reliefs sought pending the hearing and determination of the suit, and granted interim injunctive relief restraining disposal, alienation or charging of the suit parcels, with costs in the cause.

p. 5

Legal principles established

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  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or judicial discretion is sought
  • A claim for determination of trust in land is not subject to the Limitation of Actions Act
  • Limitation does not apply to trusts arising under customary law; customary trust land is held in trust even for decades

Court orders

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  1. 1.Dismissal of both Notices of Preliminary Objection dated 28th January 2019 and 22nd February 2019 with costs in the cause
  2. 2.Temporary injunction granted in terms of prayers (2) and (3) of the Notice of Motion dated 27th December 2018, restraining the defendants from transferring, selling, leasing, disposing, alienating and/or charging land parcels MWERUA/KANYOKORA/937, 938, 939 and 940 pending the hearing and determination of the suit
  3. 3.Costs of the application and objections to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSection 7 (Cap. 21 Laws of Kenya)
  • Limitation of Actions ActSection 26
  • Limitation of Actions ActSection 20(1)(b) (as cited in Stephens); Section 20(2) (as cited in Macharia Kihari)

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Limited
    (1969) E.A. 696
  • Macharia Kihari Vs Ngigi Kihari
    Civil Appeal No. 170 of 1993
  • Stephens & 6 others Vs Stephens & Another
    Civil Appeal No. 18 of 1987
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Civil Procedure Rules, Order 40 Rules 1 and 2 (interim injunction in a land suit)

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, "Josphat Mbogo Kaguongo & another v Geoffrey Muriuki Kimondo & 3 others [2021] KEELC 3806 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3806/eng@2021-03-24

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