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ELCDismissedNot stated in judgment (Kericho ELC suit; Succession Cause No. 10 of 2015 referenced)· [2022] KEELC 2741 (KLR)

Sol & 2 others v Bomet Water and Sanitation Co. Ltd & 3 others (Environment & Land Case 18 of 2015) [2022] KEELC 2741 (KLR)

Environment and Land Court
14 July 2022
2,246 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that land disputes requiring factual investigation cannot be thrown out early, protecting registered owners from time-limit objections.

What this practically means

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Executive summary

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The Plaintiffs sued for eviction of the Defendants from land parcel Kericho/Mogogosiek/527, seeking vacant possession, a permanent injunction, and mesne profits. The 1st and 4th Defendants raised a Notice of Preliminary Objection dated 10th December 2021 on three grounds: that the suit was time-barred under Sections 7 and 9 of the Limitation of Actions Act, that the 2nd and 3rd Plaintiffs lacked locus standi for want of letters of administration ad litem, and that the claim should have been lodged with the National Land Commission under Article 67 of the Constitution and Section 5 of the National Land Commission Act. The Plaintiffs did not file a replying affidavit, only written submissions, which the court held to be of no effect citing the Supreme Court's decision in Gideon Sitelu Konchellah. Nevertheless, on the merits the court found the objections were not pure points of law. The 2nd and 3rd Plaintiffs held title under Section 26(1) of the Land Registration Act, capable of challenge only on proof of fraud at a full hearing; the trespass claim rested on continuing acts, each constituting a fresh cause of action per Isaack Ben Mulwa; and the Mukisa Biscuits test precluded raising objections requiring factual ascertainment. The Preliminary Objection was dismissed with costs to the Plaintiffs, and the parties were directed to comply with Order 11 of the Civil Procedure Rules within 30 days to fast-track the hearing.

Key legal issues

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01

Locus standi of the 2nd and 3rd Plaintiffs suing without letters of administration ad litem

Holding

Not sustainable as a preliminary objection since title had been issued to the 2nd and 3rd Plaintiffs under Section 26(1) of the Land Registration Act and the matter required factual inquiry at a full hearing

Reasoning

The court found that on 14th March 2017 title to the suit land was issued to the 2nd and 3rd Plaintiffs, making them registered proprietors with indefeasible title under Section 26(1) of the Land Registration Act. Whether their title was procured by fraud could only be determined at a full hearing, so the locus standi objection was not a pure point of law and could not be determined summarily.

p. 4
02

Whether the suit is time-barred under Sections 7 and 9 of the Limitation of Actions Act

Holding

No - the claim is for continuing trespass, and each act of trespass constitutes a fresh cause of action

Reasoning

Relying on Isaack Ben Mulwa vs Jonathan Mutunga Mweke, the court held that continuous injuries to land create separate causes of action. The Plaintiffs' claim that trespass began in 1978 and continued to date was a continuation of previous acts, so limitation does not extinguish a suit based on trespass. Whether fraud was involved also required a full hearing.

p. 4
03

Whether the dispute should have been lodged with the National Land Commission under Article 67 of the Constitution and Section 5 of the National Land Commission Act

Holding

The court treated this as an issue of fact and law requiring a full hearing; the objection failed as not being a pure point of law

Reasoning

Applying the Mukisa Biscuits test, the court found the objections involved matters that had to be ascertained - such as when the Defendants entered the land and whether the registration was fraudulent. Since a preliminary objection cannot be raised where facts must be ascertained, the entire objection lacked merit and was dismissed with costs.

p. 5

Legal principles established

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  • Each action of trespass constitutes a fresh and distinct cause of action; continuous injuries to land create separate causes of action
  • A registered proprietor's title is prima facie and indefeasible, challengeable only on proof of fraud or misrepresentation at a full hearing
  • A preliminary objection cannot be raised where facts must be ascertained or judicial discretion exercised
  • Written submissions filed without a Replying Affidavit are of no effect

Court orders

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  1. 1.The Preliminary Objection by the 1st and 4th Defendants is dismissed with costs to the Plaintiffs
  2. 2.The parties to fast track the hearing of the case by complying with the provisions of Order 11 of the Civil Procedure Rules within 30 days

Authorities

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Legislation

  • Limitation of Actions ActSections 7 and 9
  • National Land Commission ActSection 5
  • Law of Succession ActSection 45
  • Land Registration ActSection 26(1)
  • Constitution of Kenya, 2010Article 67
  • Civil Procedure RulesOrder 11

Cases cited (6)

  • Julian Adoyo Ongunga vs Francis Kiberenge Abano
    CA No. 119 of 2015
  • Rajesh Pranjivan Chudasama vs Sailesh Pranjivan Chudasama
    [2014] eKLR
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR
  • Isaack Ben Mulwa vs Jonathan Mutunga Mweke
    [2016] eKLR
  • Mukisa Biscuits Manufacturing Ltd –vs– West End Distributors
    (1969) EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - implied by court designation; not expressly cited

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, "Sol & 2 others v Bomet Water and Sanitation Co. Ltd & 3 others (Environment & Land Case 18 of 2015) [2022] KEELC 2741 (KLR)", Case Analysis (2022). Not stated in judgment (Kericho ELC suit; Succession Cause No. 10 of 2015 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2741/eng@2022-07-14

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