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ELCStruck OutNot stated in excerpt· [2024] KEELC 5138 (KLR)

Makokha & 3 others v Masinde & 11 others (Environment & Land Case E012 of 2022) [2024] KEELC 5138 (KLR)

Environment and Land Court
10 July 2024
BOBoaz N. Olao
2,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Busia struck out a family land claim because the plaintiffs never obtained letters of administration and sued 51 years too late.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection in a land suit before the Environment and Land Court at Busia (Boaz N. Olao, J). The plaintiffs sued over land parcels Bukhayo/Buyofu/141 and 142, claiming ownership through their late father, David Makokha Matsukhu, who allegedly paid poll tax during land adjudication. They alleged that after their father took employment in Uganda in 1971, the family of Noah Etiang Jakait occupied the land, and that after his death the 1st to 11th defendants fraudulently took out succession in Busia High Court Succession Cause No 92 of 2003 and allocated the land to themselves. They sought declarations of ownership, mandatory injunctions and registration orders. The defendants raised a preliminary objection dated 15th December 2023 arguing want of locus standi, indefeasibility of first-registration titles under the Land Adjudication Act, and limitation. The court, applying Mukisa Biscuit, identified two pure points of law: locus standi and limitation. On standing, the court held that plaintiffs claiming through a deceased father required letters of administration ad litem or a grant, which they lacked, following Otieno v Ougo. On limitation, applying Section 7 of the Limitation of Actions Act, the 12-year period from the 2004 registration expired in 2016, and the plaintiffs' own pleadings showed dispossession in 1971 and knowledge of the alleged fraud in 2003. The preliminary objection was allowed in its entirety and the plaintiffs' suit was struck out with costs to the defendants.

Key legal issues

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01

Whether the defendants' objections constituted a proper preliminary objection

Holding

Two points of law were discerned: lack of locus standi and limitation; both qualify.

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law. Locus standi touches on the court's jurisdiction and limitation is a plea in law; neither requires ascertainment of disputed facts, so both may properly be determined preliminarily.

p. 3
02

Whether the plaintiffs had locus standi

Holding

They did not; their claim derived from a deceased father and no letters of administration ad litem or grant had been obtained.

Reasoning

The plaintiffs pleaded ownership through their late father who paid poll tax during adjudication. A claim derived from a deceased person requires a grant, limited or full, to confer standing. None was obtained, so the suit was instituted without locus standi.

p. 4
03

Whether the suit was statute barred

Holding

Yes; the 12-year limitation period expired, and on the plaintiffs' own pleadings dispossession occurred in 1971 and the alleged fraud was discoverable in 2003.

Reasoning

Section 7 of the Limitation of Actions Act bars land recovery suits after 12 years. Parcel 141 was registered in the 10th defendant's name on 26 July 2004, so time expired on 26 July 2016. Even invoking fraud under Section 26, the plaintiffs pleaded awareness of the 2003 succession, and they were themselves dispossessed in 1971, 51 years before filing.

p. 5

Legal principles established

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  • A party claiming land that belonged to a deceased person must first obtain a grant (full or limited) to clothe themselves with locus standi to sue.
  • A preliminary objection must raise a pure point of law; issues of locus standi touching jurisdiction and limitation qualify.

Court orders

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  1. 1.The Preliminary Objection dated 15th December 2023 and filed on 11th January 2024 is allowed
  2. 2.The plaintiffs' suit is struck out
  3. 3.Costs of the suit to the defendants

Authorities

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Legislation

  • Land Adjudication ActSections 26, 29, 30
  • Limitation of Actions ActSection 7
  • Law of Limitation ActSection 26

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd -V- West End Distributors Ltd
    1969 E.A 696
  • Alfred Njau & Others -v- City Council of Nairobi
    1982 – 88 I KAR 229
  • Mumo Matemu -v- Trusted Society Of Human Rights Alliance & 5 Others
    Supreme Court Civil Application No 29 of 2014 [2014 eKLR]
  • Mary Wambui Munene -V- Peter Gichuki Kingara
    Supreme Court Petition No 7 of 2013 [2014 eKLR]
  • Otieno -v- Ougo & Another
    1980-89 EALR 468
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the ruling)

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, "Makokha & 3 others v Masinde & 11 others (Environment & Land Case E012 of 2022) [2024] KEELC 5138 (KLR)", Case Analysis (2024). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5138/eng@2024-07-10

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