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ELCPartially AllowedCMELC 70 of 2018 (Appeal from Eldoret/Mombasa)· [2024] KEELC 5427 (KLR)

Mwachiru v Abdalla & another (Environment and Land Appeal E003 of 2023) [2024] KEELC 5427 (KLR)

Environment and Land Court
23 July 2024
NMN.A. Matheka
2,719 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The appellant, plaintiff in CMELC 70 of 2018 before the Chief Magistrate's Court, had sought a permanent injunction and vacant possession against the 2nd respondent, asserting that she purchased Plot No. Epco. E199 from the 1st respondent under a sale agreement dated April 15, 2004, constructed a structure, and was later dispossessed by the 2nd respondent, the 1st respondent's son. The trial court (Hon. J.B Kalo, CM) dismissed the entire suit on the ground that the claim to recover land was statutorily barred by section 17 of the Limitations of Actions Act, more than 12 years having run from the 2004 agreement. On first appeal, N.A. Matheka J confined the appeal to that point of law, the facts never having been analysed below. Setting out sections 7, 17, 3 and 4 of the Limitations of Actions Act, and applying Selle vs Associated Motor Boat Co., Peters vs Sunday Post, Mehta vs Shah, Gathoni vs Kenya Co-operative Creameries and Iga vs Makerere University, the court held that limitation could not have run from the date of the sale agreement because the appellant remained in possession until her dispossession around 2018, as evidenced by the chief's letters and OB reports. The court further found that no party held a certificate of title, so none could invoke indefeasibility under section 26 of the Land Registration Act, and the appellant's right rested on the sale agreement. Allowing the appeal to that extent, the court set aside the trial judgment and ordered, under section 78 of the Civil Procedure Act, that the matter be heard afresh, with no orders as to costs.

Key legal issues

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01

Whether the appellant's suit was barred by section 17 of the Limitation of Actions Act

Holding

No - the 12-year period had not expired because the right of action accrued on dispossession in or about 2018, not on execution of the 2004 sale agreement

Reasoning

The trial court ran limitation from the 2004 sale agreement, but the appellant was still in possession thereafter and was dispossessed around 2018 as shown by the chief's letters and OB reports. Section 7 bars an action to recover land only 12 years from accrual, and a possessor under a sale agreement has a right of possession; limitation could not run while she remained in possession. The trial magistrate's finding on limitation was therefore erroneous.

p. 5
02

Whether the parties held indefeasible title under the Land Registration Act

Holding

Neither party held a certificate of title, so neither was an indefeasible owner; the appellant's right rested on the sale agreement

Reasoning

Section 26 of the Land Registration Act makes a certificate of title prima facie evidence of ownership. No party, including the 1st respondent, produced a certificate of title. The plot numbers in the Kwa Bulo database were not recognized registration units, and the land registrar was not called to testify. The appellant could therefore only claim a contractual right to possession under the sale agreement.

p. 5

Legal principles established

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  • Time under section 7 of the Limitation of Actions Act does not begin to run while the plaintiff remains in possession; the right of action accrues upon dispossession
  • Where no party holds a certificate of title, none can claim indefeasibility under section 26 of the Land Registration Act
  • Where a trial suit is dismissed on a point of law without analysis of the facts, the first appeal is confined to that point of law

Court orders

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  1. 1.Appeal allowed to the extent of setting aside the judgment of Hon. B. Kalo delivered on 10th November
  2. 2.Order under Section 78 of the Civil Procedure Act, Cap 21 that the matter be heard afresh
  3. 3.No orders as to costs

Authorities

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Legislation

  • Limitations of Actions Act (Cap 22)section 17
  • Limitations of Actions Act (Cap 22)section 7
  • Limitations of Actions Act (Cap 22)sections 3 and 4
  • Limitations of Actions Act (Cap 22)section 18
  • Land Registration Act, Cap 300section 26
  • Civil Procedure Act, Cap 21section 78

Cases cited (6)

  • Selle & Another vs Associated Motor Boat Co. Ltd & Others
    (1968) EA 123
  • Peters vs Sunday Post Ltd
    (1958) EA at p 429
  • Sotiros Shipping vs Sauviet Soholt
    Times March 16, 1983
  • Mehta vs Shah
    (1965) EA 321
  • Gathoni vs Kenya Co-operative Creameries Ltd
    (1982) KLR 104
  • Iga vs Makerere University
    (1972) EA
On appeal from
Chief Magistrate's Court (CMELC)
CMELC 70 of 2018
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act, Cap 21

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, "Mwachiru v Abdalla & another (Environment and Land Appeal E003 of 2023) [2024] KEELC 5427 (KLR)", Case Analysis (2024). CMELC 70 of 2018 (Appeal from Eldoret/Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5427/eng@2024-07-23

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