Maina v Kinoro & another (Land Case 93 of 2019) [2022] KEELC 3764 (KLR)
The bottom line
#A Kenyan land court revived a struck-out land dispute and stopped the defendants from using or building on the plot until trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about three months in lodging the review application was unreasonable
The delay was not unreasonable given the intervening Christmas holiday, so the first condition for review was satisfied.
The impugned ruling was delivered on 28/10/2021 and the review application lodged on 15/2/2022, a period of about three months. Taking into account the Christmas holiday within that period, the court found the delay not unreasonable and held that the first test for review was passed.
Whether there was an error apparent on the face of the record in the ruling of 28/10/2021
Yes. The respondents never expressly pleaded res judicata against the Molo suit, and the Molo suit was struck out for want of jurisdiction, not heard and determined on its merits.
The preliminary objection raised only that the suit was unsustainable per the Nakuru ELC No 538 of 2013 orders; the replying affidavit only noted the same documents were used in the Molo suit, which is not a plea of res judicata. Further, the Molo suit was struck out for want of jurisdiction and thus not determined on its merits, so the res judicata finding was erroneous and could be corrected on review.
Whether the plaintiff's claim is time barred
No. The claim is for damages for trespass, a continuous tort, so the suit may be brought at any time.
The respondents argued the suit, filed in 2019 against titles issued in 2003 and 2008, was statutorily time barred. The court characterised the claim as one for damages for trespass, a continuous tort where each day of occupation by an illegal occupant is a fresh act of trespass, and rejected the limitation objection.
Whether an interlocutory injunction should issue
Yes. The plaintiff established a prima facie case and irreparable loss; an injunction preserving the suit land was necessary pending trial.
The plaintiff produced persuasive documentation including share capital receipts, a ballot paper and a bank deposit slip supporting ownership through Tayari Farmers Company Ltd. The court found a prima facie case and a risk of irreparable loss, noting the nature of the property might change further without orders, and granted an injunction restraining interference pending determination of the suit.
Legal principles established
#- Trespass is a continuous tort and each day an illegal occupant remains on land constitutes a fresh act of trespass, so a claim for damages for trespass is not time barred.
- A review may be granted where an error apparent on the face of the record is established, including where the court wrongly treated a prior suit as heard and determined on its merits.
Court orders
#- 1.Vacated the ruling dated 28/10/2021 and reinstated the suit and the application dated 17/5/2021 for determination on their merits
- 2.Issued an order of injunction restraining the respondents, their agents, from entering, remaining in, constructing on or otherwise interfering with plot Mau Summit/Molo Block 7/1036 (Tayari) pending the hearing and determination of the suit
- 3.Directed that the suit be mentioned by teleconference on 27/9/2022 for further directions as to hearing
- 4.Ordered each party to bear their own costs of the application dated 28/1/2022, with costs of the application dated 17/5/2021 to be in the cause
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules (inherent review jurisdiction of the court that made the order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina v Kinoro & another (Land Case 93 of 2019) [2022] KEELC 3764 (KLR)", Case Analysis (2022). Land Case 93 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3764/eng@2022-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.