Agriculture and Food Authority v County Government of Kisii & 4 others (Environment & Land Case 943 of 2016) [2023] KEELC 853 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed all preliminary objections against a state corporation's land recovery suit, allowing it to proceed to full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Inter-Governmental Relations Act ousts the court's jurisdiction over this inter-governmental land dispute
The Act does not apply because the dispute predates it; the suit was filed in 2012 before the Act came into operation upon the March 2013 first elections under the 2010 Constitution.
Counsel for the 3rd-5th Defendants argued that Articles 6(2) and 189(3) and (4) of the Constitution and sections 30-35 of IGRA required exhaustion of inter-governmental dispute resolution mechanisms before approaching the court. The court accepted that IGRA provides a framework for alternative dispute resolution between the two levels of government, but held that the Act only came into operation upon the final announcement of the results of the first elections under the Constitution, held in March 2013, whereas this suit was filed in 2012. The Act was therefore inapplicable, and in any event the embrace of ADR does not oust the court's jurisdiction.
Whether the plaintiff has locus standi
The plaintiff, a state corporation established under the Agriculture and Food Authority Act, has legal capacity to sue under the State Corporations Act.
The 2nd Defendant argued the plaintiff had no proprietary interest, having allegedly obtained occupation through a donation by area chief Musa Nyandusi who lacked capacity to allot land, and that the 1st Defendant's 1961/1965 first registration could not be challenged. The court held that locus standi connotes the right to bring an action and that capacity to sue is distinct from whether the plaintiff ultimately holds any right to the suit property - that is a matter for trial. As a state corporation the plaintiff may own property and sue and be sued.
Whether the suit is time-barred under sections 7 and 9 of the Limitation of Actions Act
The claim falls within section 9, accruing on dispossession, and the fraud claim falls within the proviso to section 26(a), so on its face the claim is not time-barred.
The 1st and 2nd Defendants argued the suit was barred by the 12-year period in section 7, the claim having accrued in 1999 or on the 1961 registration. The court held the plaintiff's claim was one for recovery of land by a party in possession for over 40 years and allegedly dispossessed in 2012, so time ran from dispossession under section 9. Further, the plaintiff pleaded it only discovered the registration on an official search in 2011, engaging the fraud proviso to section 26(a), under which the fraud claim is on its face not time-barred. The court also noted land disputes should not be determined on pure technicalities.
Whether the suit is incompetent / discloses no reasonable cause of action
The suit discloses a reasonable cause of action; a preliminary objection cannot rely on matters requiring ascertainment by documents, and no suit should be summarily dismissed unless plainly and obviously hopeless.
The 1st Defendant relied on alleged admissions in the plaintiff's pleadings and attached letters to submissions, invoking Order 2 Rule 15(1)(a), (b) and (d). The court held that in a preliminary objection only pleadings may be considered; matters ascertainable by documents do not qualify, per Mukisa Biscuits. Applying D.T. Dobie v Muchina, the court must act cautiously, not deal with merits, and should sustain rather than terminate a suit showing even a semblance of a cause of action. The complaint about the verifying affidavit sworn by the General Manager, Technical Services was likewise unavailing.
Legal principles established
#- Jurisdiction is everything; where a court has no jurisdiction it must down its tools.
- A preliminary objection must rest solely on the pleadings; matters requiring ascertainment by documents or evidence do not qualify.
- Where a plaintiff in possession of land is dispossessed, the right of action to recover land accrues on the date of dispossession (section 9, Limitation of Actions Act).
- Where an action is based on the fraud of the defendant, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud.
- Legal capacity to sue must not be confused with the merits of the plaintiff's underlying right to the property.
Court orders
#- 1.Dismissal of the Preliminary Objections raised by the 1st and 2nd Defendants and by the 3rd-5th Defendants.
- 2.Costs of the Preliminary Objections awarded to the plaintiff.
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya (Environment and Land Court jurisdiction over land matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agriculture and Food Authority v County Government of Kisii & 4 others (Environment & Land Case 943 of 2016) [2023] KEELC 853 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/853/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.