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ELCDismissed· [2024] KEELC 1098 (KLR)

Ogutu v Tambo & 4 others (Environment & Land Case E037 of 2021) [2024] KEELC 1098 (KLR)

Environment and Land Court
29 February 2024
EAE. Asati
1,035 words in judgment
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The bottom line

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A Kenyan court ruled that a land trespass claim isn't time-barred when the trespass continues, so the landowner's suit can proceed to trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) determined a preliminary objection dated 19th May 2023 raised by the 1st and 5th Defendants, who contended that the plaintiff's suit premised on the tort of trespass onto parcel L.R 16601, IR 75951 was barred by section 4(2) of the Limitation of Actions Act, which requires tort claims to be brought within three years, since the trespass occurred in 2012 and 2013. Relying on Mukisa Biscuits and related authorities, the defendants urged that limitation goes to jurisdiction and sought striking out of the suit with costs. The plaintiff opposed, submitting that the cause of action was discovered on 17th November 2020, that the suit filed on 8th June 2021 was within time, that the claim was also one to recover land under section 7 (12 years), and that the pleadings disclosed continuing acts of trespass. The court accepted that section 4(2) imposes a three-year period for tort claims but found on the amended plaint, particularly paragraph 9, that the defendants had persisted in their encroachment, making this a continuing trespass rather than a one-time entry. Applying the Court of Appeal's description of continuing trespass in Muthiora v Marion, the court held the limitation defence was not sustainable. The preliminary objection was dismissed with costs to the plaintiff. The substantive suit proceeds to full trial; this ruling decides only the objection.

Key legal issues

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01

Whether the plaintiff's trespass claim was time-barred under section 4(2) of the Limitation of Actions Act

Holding

The preliminary objection failed because the pleaded trespass was continuing, so the three-year limitation period did not bar the suit.

Reasoning

The court accepted that claims in tort must be brought within three years under section 4(2). However, on the pleadings, particularly paragraph 9 of the amended plaint, the defendants had persisted in their acts of encroachment since entering the land. The court adopted the definition of continuing trespass and the holding in Muthiora v Marion that where trespass is continuous the limitation defence is otiose. The suit was filed on 8th June 2021, within three years of the plaintiff's discovery on 17th November 2020, and sought eviction, confirming the claim was not defeated by limitation.

p. 3

Legal principles established

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  • Section 4(2) of the Limitation of Actions Act applies to one-time trespasses, not to continuing trespasses where the acts of encroachment persist from day to day.

Court orders

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  1. 1.The preliminary objection dated 19th May 2023 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff

Authorities

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Legislation

  • Limitation of Actions Act Cap 22 Laws of Kenyasection 4(2)
  • Limitation of Actions Act Cap 22 Laws of Kenyasection 7

Cases cited (5)

  • Mukisa Biscuits vs West End Distributors Ltd
    (1969) EA 696
  • Peter Somoni Motoki vs Jeremiah Matoke Nyang’wara & 2 others
    [2021]eKLR
  • Bosire Ogero vs Royal Media Services
    [2015]eKLR
  • Haron Onyancha vs National Police Service Commission & another
    [2017]eKLR
  • Muthiora vs Marion Muthama Kiara (suing on behalf of the estate of Erastus Muthama Kiara- deceased
    Civil Appeal 43 of 2017 [2022] KECA 28 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; ruling on preliminary objection under section 4(2) of the Limitation of Actions Act Cap 22

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, "Ogutu v Tambo & 4 others (Environment & Land Case E037 of 2021) [2024] KEELC 1098 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1098/eng@2024-02-29

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