Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 61 of 2015· [2021] KEELC 4117 (KLR)

Boniface Kipkemoi Kenduiywo & another v Richard Kenduiwa Kipkemoi & 3 others [2021] KEELC 4117 (KLR)

Environment and Land Court
4 March 2021
5,973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

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

#
The Plaintiffs, claiming to be sons of the deceased Komboni Arap Too through a second wife married under Kipsigis Customary Law, sued the Defendants (sons of the first house) seeking a declaration that title deeds LR No Kericho/Ndarawetta/1945-1949, carved out of the deceased's parcel Kericho/Ndarawetta/638, were fraudulently obtained, and an order compelling the Defendants to surrender half the deceased's estate. The Defendants denied the Plaintiffs were related to the deceased and asserted the deceased had lawfully subdivided and transferred the land to them during his lifetime, before his death in 1996. The court framed four issues: fraud, limitation, cause of action and costs. On fraud, it held that although fraud was distinctly pleaded, the Plaintiffs failed to prove it to the required standard, having neither produced the transfer document, called a forensic document examiner or Land Registry witness, nor reported the alleged forgery to police; a registered proprietor's title under Sections 24, 25 and 26 of the Land Registration Act is indefeasible absent proved fraud. On limitation, applying Section 7 of the Limitation of Actions Act, the claim filed some nineteen years after the title closed on 4th July 1996 was statute-barred, no extension of time having been sought. Relying on Bosire Ongero and Owners of the Motor Vessel 'Lillian S', the court held limitation is substantive and goes to jurisdiction, so sections 1A and 1B of the Civil Procedure Act could not save the claim. The suit was dismissed with costs.

Key legal issues

#
01

Whether the transfer and sub-division of the suit land to the Defendants was fraudulent

Holding

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

Reasoning

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.

p. 6
02

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

Holding

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

Reasoning

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.

p. 7
03

Whether the Plaintiffs have a cause of action against the Defendants

Holding

Having found the claim statute-barred, the court held it lacked jurisdiction and dismissed the suit

Reasoning

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.

p. 7

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. 1.Plaintiff's suit is dismissed with costs

Authorities

#

Legislation

  • Land Registration ActSections 24, 25, 26, 28, 71(1)(a), 71(2), 73
  • Limitation of Actions ActSection 7
  • Civil Procedure ActSections 1A, 1B, 3
  • Evidence ActSections 107 to 109
  • Civil Procedure RulesOrder 11

Cases cited (8)

  • Alice Chemutai Too vs Nickson Korir & 2 Others
    [2015] eKLR
  • Elijah Makeri Nyang’wara vs Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Kibiro Wagoro Makumi vs Francis Nduati Macharia & Another
    [2018] eKLR
  • Republic vs Senior Registrar of Titles Ex-parte Brookside Court Limited
    (2012) eKLR
  • R.G Patel vs Lalji Makanji
    1957 E.A 314
  • Arthi Highway Developers Ltd vs West End Buthery Ltd & Others
    C.A Civil Appeal No. 246 of 2013 (2015 eKLR)
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
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.