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ELCDismissedNot stated in the judgment as provided· [2022] KEELC 1573 (KLR)

Kipsongok Arap Chepsiror v William Kurgat & 5 others [2022] KEELC 1573 (KLR)

Environment and Land Court
11 February 2022
MOM.A. Odeny
2,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, by a plaint dated 22nd November 2017 and amended on 28th February 2018, sought a declaration that he was entitled to a quarter of Chesegem Farm (Cheptiret/Cheplaskei Block 1), orders for resurvey, subdivision and registration of the excised portion in his name, surrender of the original title, special and general damages, and costs. He claimed he had purchased the land from the 5th Defendant, that his signature on the Land Control Board consent was forged, and that he discovered the fraud only in 2012. The Defendants maintained that the 1971 transactions were regular: shareholders of the farm repaid a loan owed to the 5th Defendant (AFC), shares were equated to acreage, the Land Control Board consent issued on 16th March 1971, and titles were issued per the members' register. The Land Registrar confirmed the registrations and absence of caveats or complaints. The court framed two issues: whether the suit is time barred and whether fraud was proved. Relying on section 7 of the Limitation of Actions Act, the court held that the right of action, if any, accrued in 1971 and the claim brought 46 years later was statute barred. Section 26 did not assist the Plaintiff because his own evidence showed he knew of the alleged fraud by 1972, having filed Nakuru HCC No. 144 of 1975 challenging the consent, whose outcome was never established. The court also censured the parallel, abandoned litigation as an abuse of process and noted the prejudice to third-party landowners not sued. Applying the jurisdictional bar on limitation, the court dismissed the suit with costs to the Defendants.

Key legal issues

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01

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

Holding

The suit is time barred; the Plaintiff slept on his right for 46 years since the 1971 transactions

Reasoning

The court found the transactions took place in 1971 with LCB consent issued 16 March 1971 and acted upon through subdivision and titling. Section 7 bars land recovery claims after 12 years. The Plaintiff gave no reasonable explanation for the delay and had filed a 1975 suit challenging the consent whose outcome he never followed up.

p. 3
02

Whether section 26 of the Limitation of Actions Act (fraud discovery) saved the suit

Holding

It does not; the Plaintiff was aware of the alleged fraud by 1972/1975

Reasoning

The Plaintiff claimed he discovered fraud in 2012 to escape limitation, but his own evidence showed he knew of the alleged forgery of the LCB consent form by 1972, evidenced by his filing Nakuru HCC No. 144 of 1975 challenging the consent. Section 26 therefore could not aid him.

p. 4
03

Whether pursuing this suit alongside the unprosecuted 1975 Nakuru suit is an abuse of process

Holding

Parallel litigation on the same issues is an abuse of court processes

Reasoning

The court noted the 1975 Nakuru suit challenging the LCB consent was never pursued to conclusion, and the outcome would bear directly on this suit. Litigation must end and parallel processes on the same subject matter risk contradictory decisions and embarrass the court.

p. 3

Legal principles established

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  • Limitation goes to jurisdiction; a court cannot entertain a statute-barred suit even if the issue is not raised
  • Actions to recover land must be brought within 12 years of accrual of the right of action

Court orders

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  1. 1.The suit is dismissed with costs to the Defendants

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22Section 7
  • Limitation of Actions Act, Cap 22Section 26
  • Land Registration ActSection 80
  • Civil Procedure RulesOrder 1 rule 9
  • Civil Procedure RulesOrder 21 [1]

Cases cited (10)

  • Justus Tureti Obara v Peter Koipetai Nengisoi
    [2014] eKLR
  • George Nyakundi Ombaba v Turusira Osiemo & 2 others
    [2020] eKLR
  • Silvester K. Kaitany v Nyayo Tea Zones Development Co-operation & another
    [2020] eKLR
  • Kenneth Kipkosgei Kemboi & another v Leah Tuwei & 5 others
    [2012] eKLR
  • Musa Kiptai Mulwo v Ngobitwo Farmers’ Co-operative Society Limited & 3 others
    [2019] eKLR
  • Martha Chelal & another v Elijah Kipkemoi Boiywo & 20 others
    [2019] eKLR
  • Samuel Odhiambo Oludhe & 2 others v Jubilee Hardware Limited & another
    [2018] eKLR
  • Bosire Ongero v Royal Media Services
    [2015] eKLR
  • Owners of Motor Vessel “Lilian S” v Caltex Oil (K) Limited
    [1989] KLR 1
  • David Katana Ngomba v Shafi Grewal Kaka
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Constitution and 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, "Kipsongok Arap Chepsiror v William Kurgat & 5 others [2022] KEELC 1573 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1573/eng@2022-02-11

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