Boniface Kipkemoi Kenduiywo & another v Richard Kenduiwa Kipkemoi & 3 others [2021] KEELC 4117 (KLR)
The bottom line
#The Kericho Environment and Land Court dismissed a family land fraud claim because the plaintiffs proved nothing and waited nineteen years to sue.
What this practically means
#Executive summary
#Key legal issues
#Whether the transfer and sub-division of the suit land to the Defendants was fraudulent
Fraud was pleaded but not proved; the Plaintiffs failed to call expert or independent evidence and did not discharge the onus under Sections 107-109 of the Evidence Act
The court found the Plaintiffs had distinctly pleaded fraud but failed to prove it to the required standard. The transfer document was not produced as an exhibit, no forensic document examiner or Land Registry witness was called, and no police report on the alleged fraud was produced. General allegations of fraud are insufficient; the title of a registered proprietor under Sections 24, 25 and 26 of the Land Registration Act can only be challenged on proof of fraud or misrepresentation to which the proprietor is a party.
Whether the suit is time barred under the Limitation of Actions Act
The claim to recover land filed about nineteen years after the right of action accrued was statute-barred under Section 7 of the Limitation of Actions Act, ousting the court's jurisdiction
The original title was closed on 4th July 1996 and the suit was filed in 2015, some nineteen years later, exceeding the twelve-year limit in Section 7. No extension of time was sought or exhibited. Citing Bosire Ongero vs Royal Media Services, the court held that limitation goes to jurisdiction; sections 1A and 1B of the Civil Procedure Act cannot override a substantive statute, and Section 3 of the Civil Procedure Act preserves special jurisdictions. The court therefore had no jurisdiction to entertain the claim.
Whether the Plaintiffs have a cause of action against the Defendants
Having found the claim statute-barred, the court held it lacked jurisdiction and dismissed the suit
Following Owners of the Motor Vessel 'Lillian S' v Caltex Oil, the court reasoned that once it formed the opinion that it lacked jurisdiction it had to down tools and take no further step. The claim for inheritance/surrender of half the estate could also not properly be founded in this suit, as the Defendants had submitted, but the dispositive ground was want of jurisdiction arising from limitation.
Legal principles established
#- Allegations of fraud must be strictly proved; the standard is above a mere balance of probabilities though not beyond reasonable doubt
- Limitation is a substantive law that goes to jurisdiction; a statute-barred claim cannot be saved by sections 1A and 1B of the Civil Procedure Act
- An action to recover land may not be brought after twelve years from when the right of action accrued
Court orders
#- 1.Plaintiff's suit is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Kipkemoi Kenduiywo & another v Richard Kenduiwa Kipkemoi & 3 others [2021] KEELC 4117 (KLR)", Case Analysis (2021). ELC No. 61 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4117/eng@2021-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.