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ELCDismissedELC No. 14 of 2019 (Makueni)· [2023] KEELC 681 (KLR)

Kisilu & 2 others v Kivevo & 3 others (Environment & Land Case 14 of 2019) [2023] KEELC 681 (KLR)

Environment and Land Court
8 February 2023
6,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed families' claim that a 2007 land subdivision was illegal, because they never challenged the Minister's 1985 decision in time or by judicial review.

What this practically means

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Executive summary

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The Plaintiffs, claiming as legal representatives of the estates of Kioko Katuvya Mailu, Munyao Katuvya Mailu and Musembi Katuvya Mailu, sought a declaration that parcel Kiteta/Kakuswi/1091 (5.3 ha), registered to the late Kivevo Kiilu, was held in trust for the three estates; alternatively, that they had acquired ownership by adverse possession; and rectification of the land register to revert the parcels to the estates. They contended that the 1985 Minister's decision in Adjudication Appeal No. 63 of 1984 was unlawfully implemented 22 years later in 2007 in breach of Section 4(4) of the Limitation of Actions Act, that a restriction on parcel 459 was irregularly removed, and that parcel 1091 was fraudulently created. The 1st and 2nd Defendants maintained the subdivision followed the Minister's decision which was never appealed; the 3rd and 4th Defendants (the Land Registrar and the Attorney General) raised locus standi and denied fraud. The court held the Plaintiffs had capacity to sue, but that a Minister's decision under Section 29(1) of the Land Adjudication Act is not a judgment subject to the 12-year limitation period; the restriction was lawfully removed after the appeal's finalization; the subdivision was effected pursuant to the unchallenged Minister's decision, reviewable only by judicial review; fraud was pleaded but not strictly proved; and no trust was established. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Locus standi of the Plaintiffs to sue for the deceased estates

Holding

The Plaintiffs had the requisite capacity to sue on behalf of the estates, having filed a succession cause before the High Court at Makueni, notwithstanding that no grants of letters ad litem were annexed

Reasoning

The 1st and 2nd Defendants admitted the Plaintiffs' description as legal representatives in their Statement of Defence, and the 3rd and 4th Defendants filed no defence rebutting it. The Plaintiffs produced a ruling in Makueni HC P&A No. 218 of 2017 showing a succession cause was filed. Though grants were not annexed per Order 4 Rule 4, the court held the Plaintiffs had capacity.

p. 8
02

Whether the Minister's 1985 decision was lawfully implemented in 2007

Holding

The implementation was lawful; Section 4(4) of the Limitation of Actions Act does not apply to a Minister's decision under the Land Adjudication Act, which is not a judgment

Reasoning

Section 4(4) governs execution of judgments and decrees, but Section 29(1) of the Land Adjudication Act describes the Minister's order as final, not as a judgment. The statutory obligation to implement lay with the Director of Land Adjudication and the Chief Land Registrar, and there are no statutory timelines, though implementation should be within a reasonable period.

p. 9
03

Whether the restriction on parcel 459 was lawfully removed

Holding

The restriction was regularly and lawfully removed after the appeal before the Minister was finalized, as its terms required

Reasoning

The green card showed the restriction placed on 6 July 1984 was to subsist until the appeal before the Minister was finalized. The Minister's decision directed removal of the restriction, and the Chief Land Registrar removed it after finalization pursuant to the implementing letter.

p. 10
04

Whether the subdivision creating parcel 1091 was irregular or fraudulent

Holding

The subdivision was done pursuant to the Minister's decision, which was valid and binding; fraud was pleaded but not proved to the required standard

Reasoning

The Minister's Order No. 3 directed subdivision of parcel 459 into two equal halves with the new parcel registered to Kivevo Kiilu. The Plaintiffs admitted awareness of the decision and never challenged it by judicial review. Allegations of fraud required strict proof, which failed.

p. 12
05

Whether the suit property is held in trust for the Plaintiffs' estates

Holding

No trust was proved; the Plaintiffs are not entitled to the orders sought

Reasoning

Relying on the Supreme Court's elements in Isack M'inanga Kieba, the Plaintiffs failed to adduce credible evidence of an existing trust between Kivevo Kiilu and the estates. Having found the subdivision and registration lawful pursuant to the Minister's decision, the court found the claim could not stand.

p. 13

Legal principles established

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  • A Minister's decision on appeal under Section 29(1) of the Land Adjudication Act is not a 'judgment' subject to Section 4(4) of the Limitation of Actions Act, and there are no statutory timelines for its implementation
  • A party aggrieved by the Minister's decision on a land adjudication appeal may only challenge it by way of judicial review, not otherwise
  • Fraud must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities
  • Trust is a question of fact which must be proved by credible evidence by the person claiming it
  • A litigant is clothed with locus standi upon obtaining a grant of letters of administration in cases of intestate succession

Court orders

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  1. 1.The Plaintiffs' suit is dismissed with costs to the Defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 4(4)
  • Land Adjudication ActSection 29(1)
  • Civil Procedure Rules, 2010Order 4 Rule 4

Cases cited (8)

  • Law Society of Kenya Vs Commissioner for lands & Others
    Civil Case No 464 of 2000
  • Rajesh Pranjivan Chudasama Vs Sailesh Pranjivan Chudasama
    [2014] eKLR
  • Otieno v Ougo
  • Vijay Morjaria Vs Nansing Madhusing Darbar
    (2000) eKLR
  • Christopher Iddi Moto & 15 Others Vs Chiriba Nyambu Baru & Another
    [2014] eKLR
  • Paul Ngui Katilu Vs James Mwanzia Katilu
    [2019] eKLR
  • Salesio M Itonga Vs M'Ithara & 3 Others
    (2015) eKLR
  • Isaack M'inanga Kieba Vs Isaaya Theuri M'intari and Another
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to land

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, "Kisilu & 2 others v Kivevo & 3 others (Environment & Land Case 14 of 2019) [2023] KEELC 681 (KLR)", Case Analysis (2023). ELC No. 14 of 2019 (Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/681/eng@2023-02-08

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