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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 1222 (KLR)

Gichambira Gikenye & another v Paul Wanyiri Nderitu & another [2022] KEELC 1222 (KLR)

Environment and Land Court
23 February 2022
LMLucy N. Mbugua
1,929 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The court determined a Notice of Motion dated 27th August 2019 by the Plaintiffs seeking an interlocutory injunction to restrain the Defendants from interfering with, alienating or dealing with one acre of land parcel LR No. 5842/17 Karen, and a Preliminary Objection dated 26th October 2021 by the Defendants contending that the suit was time-barred under the Limitation of Actions Act. The Plaintiffs claimed to be bona fide purchasers of one acre under a 1995 sale agreement, in occupation since August 1995 planting eucalyptus trees, and facing threatened eviction and sale. The Defendants denied the Plaintiffs' possession, asserted the sale abated on the unmet completion date of 31st July 1995, disputed payment of the full purchase price, and argued that granting the injunction would amount to final relief at an interlocutory stage. Framing two issues, the court first held that the preliminary objection, though raising some matters of law on limitation, failed because the plaint includes a claim of proprietary/constructive trust, to which Section 20(1) of the Limitation of Actions Act does not apply, and because the extent of occupation was a contested factual matter requiring trial. On the injunction, finding the parties' rival claims of occupation unascertained and no structures visible, the court declined conclusive findings, instead preserving the land through maintenance of status quo and an order of inhibition against alienation. The preliminary objection was dismissed, the application marked spent, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the suit is statute-barred under the Limitation of Actions Act (Sections 4(1)(a), 7 and 27)

Holding

The preliminary objection on limitation fails because the plaint includes a claim of proprietary/constructive trust, to which limitation periods do not apply, and the extent of occupation is a contested factual issue for trial

Reasoning

The court distilled the seventeen grounds into one legal ground of limitation. It noted the plaint seeks a declaration of proprietary/constructive trust, and Section 20(1) of the Limitation of Actions Act excludes limitation periods for actions by beneficiaries under a trust. Whether the plaintiffs were in occupation for 24 years is a contested question of fact requiring evidence at trial, so the objection could not succeed at the interlocutory stage.

p. 2
02

Whether the applicants met the grounds for an interlocutory injunction

Holding

A conventional injunction was not granted; the court preserved the land through status quo and inhibition orders

Reasoning

The court found the nature and extent of each party's occupation unknown and contested, with no structures visible though mature trees existed. It declined to make conclusive findings at that infancy stage of the suit and instead, in the interest of justice and fairness, ordered maintenance of status quo and registered an inhibition to prevent waste or alienation pending trial.

p. 3

Legal principles established

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  • A preliminary objection must be raised on a matter of law and not facts
  • Periods of limitation under the Limitation of Actions Act do not apply to an action by a beneficiary under a trust
  • A court at interlocutory stage may preserve disputed property via status quo and inhibition orders rather than grant conclusive relief

Court orders

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  1. 1.The preliminary objection dated 26th October 2021 is dismissed
  2. 2.The application dated 27.8.2019 is marked as SPENT in lieu of maintenance of status quo
  3. 3.Status quo on the one acre portion in LR No. 5842/17 to be maintained pending hearing and determination of the suit, with no party to alienate, waste or utilize that portion, including cutting trees
  4. 4.An order of inhibition issued against LR No. 5842/17 to prevent alienation
  5. 5.Each party to bear their own costs of the application and the preliminary objection

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 4(1)(a)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 20(1)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 27
  • Registered Land Act (repealed)Section 126(1) and Section 163 (as referenced in Macharia Mwangi Maina quote)

Cases cited (9)

  • Mukisa Biscuit Company – vs- West End Distributors Limited
    (1969) EA 696
  • Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others
    [2015] eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    [2014] eKLR
  • Mwangi – vs – Mwangi
    (1986) KLR 328
  • Mutsonga – vs- Nyati
    (1984) KLR 425
  • Kanyi – vs- Muthiora
    (1984) KLR 712
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Giella v Cassman Brown Co Ltd
    [1973] EA 358
  • Daniel Kinyanjui Gitau & 227 Others v Mary Ruguru Njoroge
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (specific provision not stated in the judgment)

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, "Gichambira Gikenye & another v Paul Wanyiri Nderitu & another [2022] KEELC 1222 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1222/eng@2022-02-23

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