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ELCDismissedELC No. 18 of 2021 (formerly ELC No. 18 of 2021, Murang'a)· [2022] KEELC 2324 (KLR)

Waweru & another (as trustees of Kihinganda Self Help Group) v Kakuzi Limited & 3 others (Environment & Land Case 18 of 2021) [2022] KEELC 2324 (KLR)

Environment and Land Court
12 May 2022
5,271 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 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 2nd Defendant (Kakuzi PLC) moved the Environment and Land Court at Murang'a by Notice of Motion dated 17th September 2021, seeking a declaration that the court lacks jurisdiction over ELC No. 18 of 2021, striking out of the Plaint, and costs. It argued the suit was sub judice given related proceedings: an NLC claim (NLC/HLI/049/2017), Nairobi JR ELC No. 4 of 2020 seeking to quash NLC directives, and Malindi ELC Constitutional Petition No. 11 of 2020 challenging the constitutionality of Section 15(3)(b)(i) of the National Land Commission Act. It further contended the suit was time-barred under Sections 7 and 4(2) of the Limitation of Actions Act, the course of action having arisen in 1885/1966. The Plaintiffs, alleging fraud discovered in 2018 and claiming customary trust and adverse possession over L.R No. 11674, countered that the related suits raised different issues and parties. The court framed four issues. It applied the Supreme Court's sub judice test and the substance-over-form principle, finding the related suits were neither between the same parties nor on the same issues, and that fraud allegations require evidence and cross-examination unsuited to judicial review or constitutional proceedings. On limitation, it held Section 20(1)(a) of the Limitation of Actions Act exempts beneficiaries' actions for fraud or fraudulent breach of trust, so the claim was not statutory barred. The application was dismissed entirely with costs to the Plaintiffs, but the court, of its own motion, stayed the suit for 90 days to allow the Applicant to file the status of the related cases. Judgment delivered virtually at Murang'a on 12th May 2022 by L. Gacheru J.

Key legal issues

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01

Sub judice

Holding

The suit is not sub judice. Although several suits concern the same parcel of land, the issues are not directly and substantially the same and the parties are not the same; the Malindi petition concerns constitutionality of the NLC Act and the JR case seeks to quash the NLC decision.

Reasoning

Applying Section 6 of the Civil Procedure Act and the Supreme Court's test in KNCHR v AG, the court compared the substance of the suits. The instant suit concerns fraud, customary trust and adverse possession, issues requiring evidence and cross-examination unsuited to constitutional or judicial review proceedings. The parties in the referred suits also differ. Sub judice therefore was not established and the court affirmed its jurisdiction.

p. 8
02

Limitation of actions

Holding

The suit is not statutory barred because the plaintiffs' claim rests on customary trust, and Section 20(1)(a) of the Limitation of Actions Act exempts beneficiaries' actions for fraud or fraudulent breach of trust from limitation periods.

Reasoning

Though the pleadings trace the grievance to historical injustices of 1885/1966, the court found the history lays a basis for a claim of customary trust. Under Section 20(1)(a), limitation does not apply to an action by a beneficiary in respect of fraud or fraudulent breach of trust. Whether a trust exists can only be determined at full hearing, so the limitation objection fails at the preliminary stage.

p. 9
03

Whether the suit should be dismissed/struck out

Holding

The application for dismissal fails; the court has jurisdiction and the Applicant showed no prejudice.

Reasoning

Jurisdiction is the power of a court to hear a matter. Since the suit is neither sub judice nor statutory barred, no basis for dismissal exists. The plaintiffs instituted the NLC claim as required and any other referenced suits were filed by the Applicant. However, noting overlapping litigation on the same property, the court stayed the suit for 90 days to enable the Applicant to update it on the status of the related cases.

p. 9

Legal principles established

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  • To invoke the sub judice doctrine, a party must establish more than one suit over the same subject matter, one instituted before the other, both pending before competent courts, and between the same parties or their representatives
  • It is the substance, not the form, of a suit that determines whether it is sub judice
  • No period of limitation applies to an action by a beneficiary under a trust in respect of fraud or fraudulent breach of trust (Section 20(1)(a) Limitation of Actions Act)
  • Fraud must be specifically pleaded and distinctly proved, and cannot be left to be inferred from facts

Court orders

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  1. 1.The Notice of Motion dated 17th September 2021 is dismissed entirely with costs to the Respondents
  2. 2.The instant suit is stayed for 90 days to allow the Applicant to file in this Court the status of all the mentioned cases

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 26
  • Limitation of Actions ActSection 20(1)(a)
  • National Land Commission ActSection 15; Section 15(3)(b)(i)
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticles 67, 67(2), 162(2)(b), 159(2)(d)
  • Land Laws (Amendment) Act 2016Sections 38, 48, 61, 98

Cases cited (16)

  • Thiba Min. Hydro Co. Ltd vs. Joseph Karu Ndwiga
    (2013) eKLR
  • Kakuzi Division Development Association vs the Hon Attorney General & 2 Others
    Murang'a Petition No. 5 of 2020
  • Kenya National Chamber of Commerce & Industry (Murang'a Chapter) & 2 Others vs. Delmonte Kenya Limited & 3 Others
    (2020) eKLR
  • Moffat Muriithi Muchai (suing on behalf of the Estate of the Late Milka Njoki Muchai (Deceased) Vs Wanjiru Wanjohi Gatundu & 2 others
    [2019] eKLR
  • Dickson Ngige Ngugi vs Consolidated Bank Ltd (Formerly Jimba Credit Corporation Limited & another
    [2020]
  • Chemitei Kandagor v Job Kipnandi Chebon & 4 others
    [2021] eKLR
  • Edward Moonge Lengusuranga –Vs- James Lanaiyara & Anor
    (2019) eKLR
  • Ramji Megji Gudka Limited vs Alfred Morfat Omundi Michira & 2 Others
    [2014] eKLR
  • Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • Edward R. Ouko Vs Speaker of the National Assembly & 4 others
    [2017] eKLR
  • Malindi Law Society v Attorney General & 2 others
    [2020] eKLR
  • Mellen Mbera v James Theuri Wambugu
    [2020] eKLR
  • Vijay Morjaria v Nansing Madhusingh Darbar & Others
    [2000] eKLR (Civil Appeal No 106 of 2000)
  • Republic vs. Land Registrar Taita Taveta District & Another
    [2015] eKLR
  • Stephens & 6 others v Stephens & another
    [1987] eKLR
  • Ndiwa Chesebe v John Chesebe Sikuku
    [2022] eKLR
Jurisdiction invoked
Articles 162(2)(b) and 159(2)(d) of the Constitution; Section 13 of 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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Cite this brief

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Cite this brief

Caselaw, "Waweru & another (as trustees of Kihinganda Self Help Group) v Kakuzi Limited & 3 others (Environment & Land Case 18 of 2021) [2022] KEELC 2324 (KLR)", Case Analysis (2022). ELC No. 18 of 2021 (formerly ELC No. 18 of 2021, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2324/eng@2022-05-12

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