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ELCDismissedNot stated in the judgment as provided· [2022] KEELC 3031 (KLR)

Keiyo Farm Limited v Cabinet Secretary Ministry Of Lands & Settlement & 3 others (Environment and Land Case 42 of 2021) [2022] KEELC 3031 (KLR)

Environment and Land Court
15 June 2022
4,124 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan land suit filed 47 years after dispossession was struck out because the 12-year legal time limit had long expired.

What this practically means

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Executive summary

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The 3rd defendant raised a preliminary objection seeking striking out of the entire suit on three grounds: that the suit violated section 7 of the Limitation of Actions Act (Cap 22); that it raised no reasonable cause of action and was an abuse of process; and that the court lacked jurisdiction. The plaintiff filed a replying affidavit sworn by Moses Sagite, who deponed that the 3rd defendant was a former secretary who had colluded with masqueraders to sell and subdivide the suit land (LR 7383, LR 5788 and LR 5529) to non-shareholders, and that the dispute required verification of the company's shareholders' register. The court framed two issues: whether the preliminary objection was merited, and costs. Relying on Mukisa Biscuits and other authorities, the court held that the plaintiff's own pleadings showed it was displaced from the land in 1974 by Pokot raiders and never returned or lawfully claimed it until filing suit in 2021, over 47 years later; the 12-year limitation period had expired some 32 years earlier and, by section 17 of the Act, the plaintiff's title was extinguished. Further, to the extent the suit sought ascertainment and verification of a company's shareholders' register, it fell outside the ELC's jurisdiction under section 13 of the Environment and Land Court Act, being a matter for the High Court under the Companies Act. The court also held that a preliminary objection cannot be answered by affidavit. The entire claim, being dependent on the time-barred cause of action against the 3rd defendant, failed. The preliminary objection succeeded and the suit was dismissed in its entirety with costs to the defendants.

Key legal issues

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01

Whether the preliminary objection on limitation and jurisdiction was merited

Holding

Yes. The suit was statute-barred under section 7 of the Limitation of Actions Act, the plaintiff's title having been extinguished under section 17 after over 47 years of dispossession; and to the extent the suit sought verification of a company register, the court lacked jurisdiction under section 13 of the ELC Act.

Reasoning

The plaintiff pleaded that it was displaced in 1974 and never returned or lawfully claimed the land until 2021, over 47 years later. Section 7 bars actions to recover land after 12 years and section 17 extinguishes title at the expiry of the period. The plaintiff's own pleadings bound it. Further, the suit's substratum was verification of a company's shareholding register, a matter for the High Court under the Companies Act, removing it from the ELC's jurisdiction.

p. 6
02

Whether the entire claim against all defendants fails with the claim against the 3rd defendant

Holding

Yes. The claim against the other defendants was totally dependent on the cause of action against the 3rd defendant, so the entire claim fails.

Reasoning

The court examined the plaint and found the cause of action against the 1st, 2nd and 4th defendants unclear except that they were issuing titles to third parties, and any injunction sought depended on verification of the company register. Since the court lacked jurisdiction over that claim and the recovery claim was time-barred, the whole suit failed.

p. 7
03

Whether a replying affidavit may answer a preliminary objection

Holding

No. A preliminary objection should be answered through submissions, not an affidavit.

Reasoning

The court held that the affidavit of Moses Sagite sworn on 2 May 2022 should not have been filed, as preliminary objections raise pure points of law on assumed facts, while affidavits are confined to factual matters.

p. 5

Legal principles established

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  • Jurisdiction of a court flows from statute and a court cannot arrogate to itself jurisdiction it does not have
  • Limitation under section 7 of the Limitation of Actions Act bars an action to recover land after twelve years and title is extinguished under section 17

Court orders

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  1. 1.The preliminary objection succeeds
  2. 2.The suit is dismissed in its entirety with costs to the defendants

Authorities

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Legislation

  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 7
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 8
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 17
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 18
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 26
  • Environment and Land Court Act, Act No. 19 of 2011section 13
  • Companies Act, No. 17 of 2015not specified

Cases cited (15)

  • Elizabeth O. Odhiambo v South Nyanza Sugar Co. Ltd
    [2019] eKLR
  • Sohanlaldurgass and another Versus Divisional Integrated Development Programmes Co Ltd
    (2021) eKLR
  • Iga v Makerere University
    [1979] EA
  • Owners of the Motor Vessel 'Lilian S' versus Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Mukisa Biscuits Manufacturers Co Ltd vs West End Distributers Ltd
    [1969] EA 696
  • Oraro v Mbaja
    (2005) 1 KLR 141
  • Arta Singh Bhamra & another v. Oriental Commercial Bank
    HCCC No 53 of 2004
  • Grace Mwenda Munjuri v Trustees of the Agricultural Society of Kenya
    [2017] eKLR
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR
  • Susan Wairimu Ndiangui -vs- Pauline W Thuo & another
    [2005] eKLR
  • Samuel Kamau Macharia & another Vs Kenya Commercial Bank & 2 others
    Application No. 2 of 2011 (2012) eKLR
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
  • Gathoni v Kenya Cooperative Creameries Ltd
    (1982) KLR 104
  • Bosire Ogero v Royal Media Services
    [2015] eKLR
  • Pauline Wanjiru Thuo vs David Mutegi Njuru
    CA 2778 of 1998
Jurisdiction invoked
Environment and Land Court Act, No. 19 of 2011, section 13

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, "Keiyo Farm Limited v Cabinet Secretary Ministry Of Lands & Settlement & 3 others (Environment and Land Case 42 of 2021) [2022] KEELC 3031 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3031/eng@2022-06-15

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