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ELCDismissedELCA No. E014 of 2023· [2024] KEELC 7029 (KLR)

Njenga v Rimpason & another (Suing as the legal representatives of the Late Rimpason Ole Santamu alias Impasol Ole Kurary Santamu) & another (Environment and Land Appeal E014 of 2023) [2024] KEELC 7029 (KLR)

Environment and Land Court
24 October 2024
2,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court dismissed the appeal, confirming land fraud claims survive procedural objections when filed within time after discovering the fraud.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kajiado against a ruling of Hon. A.N. Makau, RM, delivered on 17th April 2023 in Ngong ELC Case No. E049 of 2021, which had declined the Appellant's preliminary objection seeking to strike out a suit instituted by Originating Summons. The respondents alleged that property Kajiado/Ntashart/2105 was fraudulently transferred to the Appellant and sought revocation of title. The Appellant raised three objections: that the Originating Summons procedure was prohibited for claims seeking cancellation of title under Order 37 Rule 8; that the suit was statute barred under the Limitation of Actions Act; and that the trial court lacked pecuniary jurisdiction. L. Komingoi, J, framed five issues and, in a first appeal, undertook an independent re-analysis. The court held that the suit was not fatally defective, as the trial court retained discretion at pre-trial to give directions and could convert the Originating Summons to a plaint under Order 37 Rule 19(1), consistent with Article 159(2)(d). On limitation, the court held the action accrued on the death of the original owner in 2009 and the suit, filed in 2021 after discovery of fraud in 2018, was within time. On jurisdiction, the value of the property was unascertained and parties could seek transfer to the ELC. The appeal was dismissed with costs to the Respondents.

Key legal issues

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01

Whether a suit seeking revocation of title commenced by Originating Summons is fatally defective

Holding

The suit was not fatally defective; at pre-trial the court has discretion to give directions on mode of hearing, and the Originating Summons may proceed as a plaint under Order 37 rule 19(1).

Reasoning

Order 37 rule 19(1) allows the court at any stage to order proceedings commenced by originating summons to continue as if begun by plaint. The court agreed with the trial magistrate that the suit was not fatally defective since directions could be given at pre-trial conference, and Article 159(2)(d) favours substance over technicality.

p. 12
02

Whether the suit was statute barred under the Limitation of Actions Act

Holding

The suit was not statute barred; it was filed in 2021 within the period after discovery of the alleged fraud in 2018, and the right of action accrued in 2009 on the death of the original owner.

Reasoning

Section 9(2) of the Limitation of Actions Act provides that where a deceased person was the last person entitled to land and in possession at death, the right of action accrues on the date of death. The respondents discovered the alleged fraudulent transfer in 2018 and filed suit in 2021, so the claim was within time.

p. 13
03

Whether the trial magistrate erred in not striking out the suit for want of pecuniary jurisdiction

Holding

No error; the value of the suit property had not been ascertained and parties can apply to have the suit transferred to the Environment and Land Court.

Reasoning

The valuation report valuing the land at Kshs.25,000,000 would be tested in evidence; as at the time of the ruling the value had not been ascertained. In any event, transfer to the ELC is available, so striking out was not warranted.

p. 13

Legal principles established

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  • A first appeal is open for rehearing on both questions of fact and law, and the first appellate court must re-analyse the case and draw its own independent conclusion.
  • Courts are enjoined to do substantial justice rather than dwell on technicalities, and an Originating Summons may be directed to proceed as a plaint.
  • Where a claim to recover land of a deceased person is based on fraud discovered later, and the action is filed within the limitation period from discovery, the suit is not statute barred.

Court orders

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  1. 1.Appeal dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 8
  • Civil Procedure RulesOrder 37 Rule 19(1)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 78
  • Land Registration Act2012 (general reference)

Cases cited (5)

  • Cyril J. Haroo & another vs Uchumi Supermarkets Ltd & 3 others
    (2014) eKLR
  • R vs Kuria West District (Masaba Division) Land Disputes Tribunal & 3 others and another
    (2014) eKLR
  • Charles Omwata Omwoyo vs African Highlands & Produce Company Ltd
    (2002) eKLR
  • Phoenix of E.A Assurance Company Ltd vs S.M. Thiga t/a Newspaper Service
    (2019) eKLR
  • Paramount Bank Limited v First National Bank Limited & 2 others
    [2023] KECA 1424 (KLR)
On appeal from
Chief Magistrate's Court, Ngong
Ngong ELC Case No. E049 of 2021
Jurisdiction invoked
First appeal under section 78 of the Civil Procedure Act from the Magistrates' Court ruling

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njenga v Rimpason & another (Suing as the legal representatives of the Late Rimpason Ole Santamu alias Impasol Ole Kurary Santamu) & another (Environment and Land Appeal E014 of 2023) [2024] KEELC 7029 (KLR)", Case Analysis (2024). ELCA No. E014 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7029/eng@2024-10-24

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