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ELCStruck OutKericho ELC Case (number not stated in judgment)· [2023] KEELC 861 (KLR)

Koech (Suing as Legal Personal Representative and beneficiary of the Estate of the Late Kipkoech arap Mutai) v Siele & 18 others (Environment & Land Case E003 of 2022) [2023] KEELC 861 (KLR)

Environment and Land Court
16 February 2023
4,492 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Kericho Environment and Land Court struck out a 27-year-late family land claim because it was time-barred and duplicated an existing Sotik case.

What this practically means

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Executive summary

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The plaintiff, as legal personal representative and beneficiary of the estate of Kipkoech Arap Mutai (deceased 19 January 1998), sued 19 defendants seeking declarations that the transfer of LR Kericho/Boito/1087 and its subdivision into numerous resultant titles was fraudulent and void, rectification of the register to reinstate the deceased, a permanent injunction, a declaration of trespass, eviction, and costs. The 1st, 2nd, 6th, 8th, 9th, 10th, 11th, 12th, 14th and 16th defendants raised preliminary objections on two limbs: that the claim to title was time barred under Section 7 of the Limitation of Actions Act, and that the suit was sub judice and res judicata given a previously filed, allegedly still-pending suit in Sotik PMC ELC No E040 of 2021 between the same parties over the same subject matter. The court, applying Mukisa Biscuits, held both were pure points of law. It found the Sotik suit pending and the present matter sub judice and an abuse of process, noting no evidence that the earlier suit had terminated despite the plaintiff's claim it had been withdrawn. On limitation, the court held that although couched as nullification of titles, the claim was in substance one for recovery of land, filed about 27 years after the 1995-1996 subdivisions, well beyond the twelve-year period in Section 7. Statute-barred claims go to jurisdiction, so the court downed its tools. The preliminary objection succeeded on both limbs and the plaintiff's suit was struck out with costs to the objecting defendants.

Key legal issues

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01

Whether the suit was sub judice/res judicata given the Sotik PMC ELC No E040 of 2021 suit

Holding

The court found the matter in issue was directly and substantially in issue in the previously instituted Sotik suit between the same parties; the present suit was sub judice and an abuse of court process. No evidence showed the earlier suit had been terminated, despite the plaintiff's claim that it was withdrawn.

Reasoning

Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The court compared the parties and subject matter and found them identical, both seeking reversion of subdivisions to LR Kericho/Boito/1087. Without proof that the Sotik suit was terminated, parallel litigation would violate Section 1B's overriding objective of efficient use of judicial resources.

p. 7
02

Whether the claim to recover the land was time barred

Holding

The claim was a claim for recovery of land dressed as cancellation/nullification of titles; it was filed 27 years after the subdivisions and was statute barred under Section 7 of the Limitation of Actions Act, ousting the court's jurisdiction.

Reasoning

Section 7 bars actions to recover land after twelve years from accrual of the right. The subdivisions occurred in 1995-1996, and the suit was filed in February 2022. The court characterized the 'nullification' pleading as cleverly drafted recovery of land. The plaintiff's Section 26 fraud-discovery argument was rejected as the court found the claim statute barred on its face; limitation goes to jurisdiction, so the court had to down its tools.

p. 9
03

Whether the objection was a proper Preliminary Objection on a point of law

Holding

Plea of limitation is a classic preliminary objection on a pure point of law, arguable on the assumption that the plaintiff's pleaded facts are correct, per Mukisa Biscuits.

Reasoning

The court adopted the Mukisa Biscuits definition: a preliminary objection is a point of law pleaded or arising clearly from pleadings which may dispose of the suit, citing Quick Enterprises and Avtar Singh Bhamra. Limitation and sub judice both qualify as pure points of law requiring no ascertainment of facts beyond the pleadings.

p. 7

Legal principles established

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  • An action to recover land may not be brought after the end of twelve years from when the right of action accrued
  • Where a matter is statute barred, the court has no jurisdiction to entertain it and must down its tools
  • A suit directly and substantially in issue in a previously instituted suit between the same parties is stayed under the sub judice rule

Court orders

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  1. 1.The Preliminary Objection on both limbs succeeds
  2. 2.The Plaintiff's suit is struck out
  3. 3.Costs of the suit awarded to the 1st, 2nd, 6th, 8th, 9th, 10th, 11th, 12th, 14th, and 16th Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 27(1)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 4
  • Limitation of Actions ActSection 26
  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure RulesOrder 40(1)(a) and (b)

Cases cited (15)

  • Susan Wanjiru Waweru v Musa Kimengich Kimuge
    [2019] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Bernard Mugo Ndegwa vs James Nderitu Githae & 2 Others
    [2010] eKLR
  • Kenya National Commission on Human Rights vs. Attorney General Independent Electoral & Boundaries Commission & 16 others
    [2021] eKLR
  • George Stephen Njoroge Macharia vs. Issa Mjawiri Jabiri & 2 Others
    Kwale ELC No 109 of 2021
  • Mary Muthoni Njoroge vs. Joseph Wachira Nderitu & Another
    Thika ELC No 42 of 2017
  • Wensley Barasa vs. Immaculate Awino Abongo & Another
    Bungoma ELC Appeal No 5 of 2020
  • Giella v Cassman Brown
  • Muiruri vs. Bank of Baroda Kenya Ltd
    2001 eKLR
  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR
  • Quick Enterprises Ltd. vs. Kenya Railways Corporation
    Kisumu HCCC No 22 of 1999
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No 53 of 2004
  • Mukuru Munge v Florence Shingi Mwawana & 2 others
    [2016] eKLR
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (not expressly cited in 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, "Koech (Suing as Legal Personal Representative and beneficiary of the Estate of the Late Kipkoech arap Mutai) v Siele & 18 others (Environment & Land Case E003 of 2022) [2023] KEELC 861 (KLR)", Case Analysis (2023). Kericho ELC Case (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/861/eng@2023-02-16

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