Njiru v Diocese of Embu Registered Trustees (Environment and Land Case 22B of 2021) [2024] KEELC 4470 (KLR)
The bottom line
#The Embu Environment and Land Court ruled a 1970s land sale claim came far too late, so the Diocese lost its bid for 9 acres and a restriction was removed.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant's counterclaim based on the 1975/1976 sale agreements was time-barred
The counterclaim failed as the claim founded on contract was brought about 49 years after the agreements, far beyond the six-year limitation period, which admits of no extension
Section 4(1) of the Limitation of Actions Act bars actions founded on contract brought after six years from accrual of the cause of action. The sale agreements were made in 1975 and 1976, roughly 49 years before suit. No leave to file out of time could assist since time cannot be extended in contract claims. Reliance was placed on Michael Benhardt Otieno v NCPB, Gathoni v KCC and Iga v Makerere University.
Whether the defendant could rely on adverse possession in its submissions though not pleaded in the counterclaim
No - parties are bound by their pleadings; having withdrawn the originating summons for adverse possession, that claim fell away and could only be revived by amendment
The defendant's counterclaim was framed solely on the sale agreements and purchaser's interest. Adverse possession was never pleaded. The defendant had earlier filed ELC No. 32 of 2020 by originating summons seeking adverse possession but withdrew it on 03.11.2021 when the parties agreed to pursue the transferred Siakago suit. Evidence or submissions inconsistent with pleadings cannot found a judgment.
Whether the plaintiff was entitled to removal of the restriction on Evurore/Evurore/680
Yes - restrictions under sections 76-78 of the Land Registration Act are not meant to endure indefinitely, and with the sale agreements found unenforceable there was no legal basis for the restriction
The Land Registration Act empowers the Registrar to register restrictions and empowers the court, on application by an affected proprietor and notice to the Registrar, to order removal or variation. The restriction was registered pursuant to a sale agreement; having found those agreements unenforceable for limitation, the court found no legal reason for the restriction to remain and ordered its removal by the Mbeere Land Registrar.
Legal principles established
#- Actions founded on contract must be brought within six years from the date the cause of action accrued, and no court may entertain an action in contract brought after that period
- A claimant may not depart from its pleadings; once the defendant withdrew its originating summons for adverse possession, that claim could only be revived by amendment of the counterclaim
- Restrictions on a title cannot endure indefinitely; where the underlying agreement relied on is unenforceable, the court may order the restriction removed
Court orders
#- 1.The defendant's counterclaim is dismissed for being time-barred
- 2.The plaintiff's suit is allowed and the restriction placed against land parcel Evurore/Evurore/680 shall be removed by the Land Registrar, Mbeere Lands Registry
- 3.Each party shall bear their own costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit transferred from Siakago magistrates' court); not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njiru v Diocese of Embu Registered Trustees (Environment and Land Case 22B of 2021) [2024] KEELC 4470 (KLR)", Case Analysis (2024). ELC Case at Embu (transferred from Siakago MCL&E Case No. 36 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4470/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.