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ELCPartially AllowedELCA E012.2022 (Thika)· [2024] KEELC 4408 (KLR)

Gitau v Gitau (Environment and Land Appeal E012 of 2022) [2024] KEELC 4408 (KLR)

Environment and Land Court of Kenya
28 May 2024
5,915 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot dismiss a land case on a limitation-of-time defence the other side never formally raised in their pleadings.

What this practically means

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Executive summary

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This is a first appeal from the dismissal on 13/1/2022 of Githunguri ELC Case No. 22 of 2019, in which the Appellant, registered owner of Githunguri/Nyaga/4XX since 1956/1968, sought declarations that the subdivision of his land pursuant to a quashed Land Dispute Tribunal award was illegal, rectification of the title, cancellation of the subdivision and eviction of the Respondent. The trial court dismissed the suit on the ground that the 2002 judicial review judgment was stale and unenforceable under Section 4(4) of the Limitation of Actions Act. On appeal, the Appellant argued limitation was never pleaded and that time, if at all, ran from his 2009 execution application. The Respondent defended the reliance on limitation, invoking Article 159(2) and the Odd Jobs exception on unpleaded issues. J G Kemei J, sitting as a first appellate court, held that limitation of time was not pleaded by the Respondent and that the evidence and course of trial did not satisfy the conjunctive conditions of the Odd Jobs exception, so the trial court erred in determining an unpleaded issue. That finding rendered the computation-of-time issue moot. The court further observed that the certiorari orders of 18/10/2002 nullified the Tribunal award and the resulting 2002 title entries, leaving nothing to execute and requiring a fresh suit for cancellation of titles. The appeal partially succeeded on ground one alone; the suit was remitted to the trial court for determination by a different judicial officer, with each party bearing their own costs given their familial relationship.

Key legal issues

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01

Whether the trial court could determine the suit on the unpleaded issue of limitation of time

Holding

The trial court erred; limitation was not pleaded and the Odd Jobs exception was not satisfied because the parties neither identified nor left the unpleaded issue to the court for determination.

Reasoning

The court reviewed Order 2 rule 4(1) and (2) of the Civil Procedure Rules requiring specific pleading of limitation, and the case law on the Odd Jobs exception (Pacific Frontier Seas, Rawal, Joseph Ndafu Njurukani). It found no pleading on limitation by the Respondent and no cogent evidence from the course at trial that the parties led evidence on or left the unpleaded issue to the court. The exception's conjunctive conditions were not met.

p. 10
02

Effect of the quashed Tribunal award and the judicial review orders on the title entries

Holding

The certiorari and prohibition orders of 18/10/2002 nullified the 28/6/2002 title entries and the elders' award, so the subdivisions and titles issued pursuant thereto were of no effect and there was nothing for the Appellant to execute; a fresh suit was required to cancel the titles.

Reasoning

Relying on Macfoy v United Africa Co Ltd, the court held that an act of a tribunal without legal power is void and incurably bad. The Tribunal award was ultra vires and its quashing nullified the resulting title entries, so the land reverted to the Plaintiff as at 14/11/1956. Enforcement of certiorari required no execution; cancellation of the titles required a separate suit.

p. 11
03

Whether the second issue (computation of time under Section 4(4) of the Limitation of Actions Act) fell for determination

Holding

Having found the trial court erred in determining the unpleaded limitation issue, the question of when time begins to run under Section 4(4) became moot.

Reasoning

Since the court found that the limitation issue ought never to have been determined, the subsidiary dispute over the computation of time from the date of judgment (18/10/2002) versus the date of the execution application (31/3/2009) did not require resolution. The court therefore declined to engage with the rival computations advanced in the parties' submissions.

p. 11

Legal principles established

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  • A court may not base its decision on unpleaded issues unless evidence was led and the issue was left to the court for determination at trial
  • An act done by a tribunal without legal power is a nullity and requires no order to set it aside

Court orders

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  1. 1.Appeal partially succeeds in terms of ground No 1 alone
  2. 2.Suit remitted to the trial Court for determination by a different Judicial Officer
  3. 3.Each party to bear their own costs of the appeal
On appeal from
Principal Magistrate's Court (Githunguri ELC Case No. 22 of 2019)
Githunguri ELC Case No. 22 of 2019
Jurisdiction invoked
Section 78 of the Civil Procedure Act (first appellate court jurisdiction)

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, "Gitau v Gitau (Environment and Land Appeal E012 of 2022) [2024] KEELC 4408 (KLR)", Case Analysis (2024). ELCA E012.2022 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4408/eng@2024-05-28

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