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ELCDismissedNot stated in the excerpt (Nairobi Environment and Land Court suit; related suit H.C.C.C No. 523 of 2001 struck out)· [2023] KEELC 624 (KLR)

Chepkwony & 2 others v Mwaura & 3 others (Environment & Land Case 952 of 2014) [2023] KEELC 624 (KLR)

Environment and Land Court
9 February 2023
EWE.K. Wabwoto
2,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, registered owners of L.R. Nos. 209/11570, 209/13231 and 209/13232 in Dandora Light Industrial Area, Nairobi, sued the Defendants alleging that in various dates in 2000 they wrongfully entered, subdivided and occupied the parcels. They sought a permanent injunction against alienation and occupation, an eviction order, general damages for trespass and costs. Only the 4th Defendant, an association whose chairman testified that it was allocated the land by the City Council in 1990 and had occupied and built there since 1991, contested the suit. It denied any interest in the Plaintiffs' property and argued the suit was time barred under sections 4(2) and 7 of the Limitation of Actions Act and that no cause of action was established. The court framed two issues: whether the suit was time barred and, if not, whether the Plaintiffs had proved their case. Relying on Mehta v Shah, Gathoni v Kenya Co-operative Creameries and Iga v Makerere University, the court held that a limitation bar removes the remedy irrespective of merits. Since the Plaintiffs pleaded and confirmed that the trespass occurred in 2000 and suit was filed in 2014, the land claim exceeded the twelve-year period under section 7 and the trespass claim the three-year period under section 4(2). No ground of exemption was shown. The suit was accordingly dismissed with costs to the 4th Defendant, the court declining to pronounce on the remaining issues.

Key legal issues

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01

Whether the Plaintiffs' suit, filed in 2014 over a trespass pleaded as occurring in 2000, was time barred

Holding

Yes - the claim to recover land was brought more than 12 years after accrual (section 7) and the trespass claim more than 3 years after accrual (section 4(2)), so the suit was statute barred

Reasoning

The Plaintiffs pleaded that the Defendants entered and trespassed on the suit properties in the year 2000, and the Plaintiffs' witness confirmed the invasion occurred in 2000. The suit was filed in 2014, fourteen years later. Under section 7 of the Limitation of Actions Act land recovery actions must be brought within twelve years, and under section 4(2) trespass claims within three years. No exemption or ground tolling the limitation period was shown, so the remedy was removed by operation of law irrespective of merits.

02

Whether the court should still determine ownership, injunction, eviction and damages

Holding

No - having found the suit time barred, the court did not pronounce itself on the remaining issues

Reasoning

Because limitation operates to bar the remedy irrespective of the merits, the court treated the limitation finding as dispositive and declined to make findings on the Plaintiffs' title, the claimed permanent injunction, eviction and general damages for trespass.

p. 6

Legal principles established

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  • An action to recover land may not be brought after the end of twelve years from the date the right of action accrued (section 7, Limitation of Actions Act)
  • A claim barred by limitation is barred by law; limitation removes the remedy irrespective of the merits
  • A claim founded on tort, including trespass, must be brought within three years under section 4(2) of the Limitation of Actions Act

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Costs of the suit awarded to the 4th Defendant

Authorities

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Legislation

  • Registered Land ActSection 24
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 4(2)
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 7

Cases cited (7)

  • Harrison Kiambuthi Wanjiru & Another v District Land Registrar Nairobi & 3 others
    [2022] eKLR
  • Manfed Walter Schift v Dubai Bank Limited & 2 others
    [2014] eKLR
  • Nguruman Limited v Jan Bonde Nielson & 2 others
    CA No 77 of 2012
  • Nation Media Group & 2 others v John Harun Mwau
    [2014] eKLR
  • Mehta v Shah
    [1965] E.A 321
  • Gathoni v Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Iga v Makerere University
    [1972] EA
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land situated in Nairobi (trespass to and recovery of L.R. Nos. 209/11570, 209/13231 and 209/13232); specific constitutional/statutory basis not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chepkwony & 2 others v Mwaura & 3 others (Environment & Land Case 952 of 2014) [2023] KEELC 624 (KLR)", Case Analysis (2023). Not stated in the excerpt (Nairobi Environment and Land Court suit; related suit H.C.C.C No. 523 of 2001 struck out). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/624/eng@2023-02-09

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