Josphat Mbogo Kaguongo & another v Geoffrey Muriuki Kimondo & 3 others [2021] KEELC 3806 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is res judicata/sub judice given the Nyeri ELC No. 56 of 2016 (formerly HCCC No. 114 of 1991) judgment
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
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.
Whether the plaintiffs' claim is time barred under the Limitation of Actions Act
The limitation preliminary objection failed because a claim for determination of customary trust in land is not subject to limitation
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.
Whether a temporary injunction should issue over parcels 937, 938, 939 and 940 pending the hearing of the suit
The Notice of Motion was found merited and interim injunction granted in terms of prayers (2) and (3)
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.
Legal principles established
#- 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
#- 1.Dismissal of both Notices of Preliminary Objection dated 28th January 2019 and 22nd February 2019 with costs in the cause
- 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.Costs of the application and objections to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.