Sol & 2 others v Bomet Water and Sanitation Co. Ltd & 3 others (Environment & Land Case 18 of 2015) [2022] KEELC 2741 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Locus standi of the 2nd and 3rd Plaintiffs suing without letters of administration ad litem
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
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.
Whether the suit is time-barred under Sections 7 and 9 of the Limitation of Actions Act
No - the claim is for continuing trespass, and each act of trespass constitutes a fresh cause of action
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.
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
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
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection by the 1st and 4th Defendants is dismissed with costs to the Plaintiffs
- 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
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - implied by court designation; not expressly cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.