Gikonye v City Council of Nairobi & another; Maina (Interested Party) (Environment & Land Case 504 of 2009) [2023] KEELC 528 (KLR)
The bottom line
#The court dismissed a landowner's claim over a Nairobi plot because he had already sold it, and threw out a rival buyer's counterclaim as filed too late.
What this practically means
#Executive summary
#Key legal issues
#Effect of change of circumstances on relief claimed
The Plaintiff's claim for quiet possession failed because he had sold and transferred the property to the Interested Party before trial; he should have amended his plaint.
The suit was filed in 2009 claiming quiet possession. By trial the Plaintiff had sold the suit property to the Interested Party in 2008, the title was registered in the Interested Party's name and the property fully developed. The court held the plaint was founded on a false hypothesis of facts and the Plaintiff failed to amend.
Cause of action against the Plaintiff by the 2nd Defendant
None established; the alleged breach of contract was by the 1st Defendant, not the Plaintiff.
Applying the DT Dobie definition of cause of action, the court found the 2nd Defendant could not point to any wrong committed by the Plaintiff. Both parties derived their allocations from the 1st Defendant, so the alleged breach was attributable solely to the 1st Defendant.
Limitation of the 2nd Defendant's claim
Claim against the Plaintiff time barred under Section 7 of the Limitation of Actions Act.
The Plaintiff took possession in 1994 and the counterclaim was filed in 2014, over 20 years later. Section 7 bars actions to recover land after 12 years from accrual of the right of action.
Validity of counterclaim against a co-defendant
A counterclaim cannot be brought against a co-defendant; the purported counterclaim against the 1st Defendant was struck out (not dismissed) to preserve the 2nd Defendant's option to file a proper claim.
Relying on Black's Law Dictionary and Halsbury's Laws of England, the court held a counterclaim is a cross-suit by defendant against plaintiff. The proper course would have been a claim against a co-defendant. Striking out rather than dismissing avoids res judicata on the merits.
Legal principles established
#- A counterclaim can only be brought by a defendant against a plaintiff, not against a co-defendant; a claim against a co-defendant must be brought separately.
- Under Section 7 of the Limitation of Actions Act (Cap 22), an action to recover land may not be brought after 12 years from when the right of action accrued.
- A certificate of title under Section 26(1) of the Land Registration Act is prima facie evidence that the named proprietor is the absolute and indefeasible owner.
Court orders
#- 1.Declaration that the Plaintiff is not entitled to the orders sought in the plaint, the suit having been overtaken by events; the Interested Party is the lawful and registered proprietor
- 2.Finding that the 2nd Defendant has not established a cause of action against the Plaintiff and that her claim against the Plaintiff is time barred
- 3.Strike-out of the 2nd Defendant's counterclaim against the 1st Defendant (expressly not a dismissal, to leave the 2nd Defendant free to file a proper claim against a co-defendant)
- 4.Each party to bear its own costs of the suit and counterclaim
- Jurisdiction invoked
- original civil jurisdiction over the plaint and counterclaim (land dispute); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikonye v City Council of Nairobi & another; Maina (Interested Party) (Environment & Land Case 504 of 2009) [2023] KEELC 528 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/528/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.