John Kinyua Kivuti v Kanyi Njiru & 4 others [2022] KEELC 1629 (KLR)

The court examined Section 13(2) of the Environment and Land Court Act, which empowers it to determine disputes relating to title, land administration and instruments granting enforceable interests in land. Section 80 of the Land Registration Act confers power to order rectification of the register where a registration was obtained by fraud or mistake. Since prayer 1 sought cancellation of register entries on land parcel Kagaari/Kanja/226, the subject matter is a land dispute vesting jurisdiction in the ELC. However, the order directing filing of a proper succession cause belongs to the High Court's succession jurisdiction.

The respondent traced the cause of action to 1979 when the transfer was registered, invoking Section 7's twelve-year rule for recovery of land. The court held that limitation time stops running during the pendency of a suit, and the parcel was subject to continuous litigation (Embu Civil Suit No. 18 of 2002 and the appeal dismissed in 2015). The application, filed in 2020, essentially seeks to give life to the 2015 judgment, so Section 4(4) of the Limitation of Actions Act governs and the application is not time barred.

Guided by Mukisa Biscuit and JSK v WKW, the court restated that a preliminary objection must raise a pure point of law on assumed pleaded facts. An assertion that an application is vexatious, scandalous, frivolous and an abuse of court process does not meet that test, as it requires consideration of facts and matters outside the pleadings. Accordingly, that ground could not sustain the objection.