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ELCStruck OutELC No. 485 of 2013· [2022] KEELC 1108 (KLR)

Paul Chebii Chelimo & 15 others v A.I.C Kaptabuk & 2 others [2022] KEELC 1108 (KLR)

Environment and Land Court of Kenya
24 February 2022
1,437 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a community's 2013 land claim because it was filed 30 years after the cause of action accrued, well beyond the 12-year limit.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection by the 2nd and 3rd Defendants (Katkok Primary School and the Land Registrar, Elgeyo Marakwet County) in a suit filed in October 2013 by members of the Kabuswo/Katkok Community. The Plaintiffs originally sought a declaration that parcel E/Marakwet/1895 belonged to Katkok Primary School and an injunction against alienation, after earlier mediation directed by Munyao J before the Deputy County Commissioner produced a survey showing the school occupied 5.7 hectares against 5.60 hectares on the title. The Plaintiffs then amended their plaint in 2019 to claim the community's land had been fraudulently registered and sought cancellation of the title, eviction, injunction, survey, boundary determination and general damages. The objection raised limitation under section 7 of the Limitation of Actions Act, laches, lack of locus and abuse of process. Obaga J held the Plaintiffs had locus standi and that late filing of an amendment was not a preliminary-issue ground, but found the suit time-barred: the land was set aside for the school in 1983, the cause of action accrued then, and the suit should have been filed by 1996. Applying Iga v Makerere University, the court upheld the preliminary objection and struck out the suit with costs to the Defendants.

Key legal issues

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01

Locus standi of community members to challenge registration of community land in the defendant's name

Holding

Plaintiffs have locus standi to move the court to determine whether community land was fraudulently registered in the 2nd Defendant's name

Reasoning

The court found no basis for the objection: the amended plaint clearly alleged that community land was fraudulently registered in the 2nd Defendant's name, a matter that would have required interrogation at full trial. The objection on locus therefore failed.

p. 3
02

Whether late filing of an amended plaint is a proper preliminary objection

Holding

Late filing of an amendment is not a ground arguable as a preliminary issue before hearing

Reasoning

The court held that a suit that has not been heard allows amendments before conclusion of hearing, provided the amendment does not prejudice the opposite party or introduce a statute-barred claim. The objection on laches therefore could not stand as a preliminary point.

p. 3
03

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

Holding

Yes; the cause of action accrued in 1983 when the land was set aside, and the suit filed in 2013 was far out of time

Reasoning

The land was set aside for the school in 1983 following demarcation, and title issued on 14th September 2011. The Plaintiffs' claim of fraud discovered in 2008 was a shift of mind to circumvent limitation. On the authority of Iga v Makerere University, a plaint barred by limitation must be rejected and the court cannot grant the relief sought.

p. 3

Legal principles established

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  • A claim to recover registered land must be brought within 12 years of accrual under section 7 of the Limitation of Actions Act; a suit filed outside that period is statute barred and the court cannot grant the remedy sought

Court orders

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  1. 1.Preliminary objection by the 2nd and 3rd Defendants upheld on the ground that the suit is statute barred
  2. 2.Suit struck out with costs to the Defendants

Authorities

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Legislation

  • Limitation of Actions Actsection 7

Cases cited (1)

  • Iga vs Makerere University
    (1972) EA 65
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Paul Chebii Chelimo & 15 others v A.I.C Kaptabuk & 2 others [2022] KEELC 1108 (KLR)", Case Analysis (2022). ELC No. 485 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1108/eng@2022-02-24

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