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ELCDismissedEnvironment & Land Case 10 of 2021· [2024] KEELC 7337 (KLR)

Ajore v Owidi (Environment & Land Case 10 of 2021) [2024] KEELC 7337 (KLR)

Environment and Land Court
5 November 2024
1,123 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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This is a ruling of the Environment and Land Court at Homa Bay (G.M.A Ong'ondo, J) on a preliminary objection dated 5th July 2024 raised by the defendant, O.H Bunde and Company Advocates. The defendant objected that the plaintiff's suit - seeking transfer of a portion of land reference Kabondo/Kodhoch East/1437 bought under agreements of 2001 and 2003, together with specific performance and a permanent injunction - offended section 7 of the Limitation of Actions Act (Cap 22), was therefore a nullity ab initio, disclosed no reasonable cause of action, and was an abuse of court process, divesting the court of jurisdiction. Relying on Mukisa Biscuit and Mary Osundwa, counsel for the defendant argued that section 27 of the LAA permits extension of time only in tort, not contract. The plaintiff, through Mr. Otieno Bana, countered that having paid the full purchase price and been placed in possession, a constructive trust arose over the portion, anchored in Article 10(2)(b) of the Constitution, such that section 20 of the LAA on trust property applies and sections 4 and 7 are inapplicable, citing Ndiwa Chesebe. The court held that the constructive trust claim fell under section 20 of the LAA and that section 27 on extension did not apply to it. It found a cause of action discerned in the suit, neither an abuse of process nor a nullity, and disallowed the preliminary objection, with costs in the cause. The suit proceeds to full trial.

Key legal issues

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01

Whether the suit is statute barred under section 7 of the Limitation of Actions Act

Holding

No - the plaintiff raises an equitable claim of constructive trust, which falls under section 20 of the LAA and is not barred by sections 4 and 7

Reasoning

The defendant argued that the 2001/2003 agreement and alleged breach rendered the suit time-barred under section 7 of the LAA. The plaintiff countered that having paid the full purchase price and been put in possession, a constructive trust arose, anchored on Article 10(2)(b) of the Constitution. The court agreed that trust claims are governed by section 20 and that section 27 on extension of time does not apply to them, following the Chesebe case.

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02

Whether the court has jurisdiction and whether the suit discloses a reasonable cause of action

Holding

The court found a cause of action discerned in the suit, which is neither an abuse of process nor a nullity

Reasoning

Applying the Mukisa Biscuit test, the court accepted that the objection raised pure points of law and thus warranted handling with promptitude per Kakuta Maimai Hamisi. However, having determined that the constructive trust claim is not captured by section 7 or 4 of the LAA, the court concluded the suit is not a nullity and jurisdiction subsists.

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Legal principles established

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  • A preliminary objection must be based on points of law and may dispose of a suit
  • Where a purchaser has been put in possession and paid full purchase price, a constructive trust arises, and section 27 of the Limitation of Actions Act on extension of limitation period does not apply to such trust claims

Court orders

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  1. 1.The preliminary objection dated 5th July 2024 is disallowed
  2. 2.Costs of the preliminary objection to be in the cause

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 4
  • Limitation of Actions Actsection 20
  • Limitation of Actions Actsection 27
  • Constitution of Kenya 2010Article 10(2)(b)

Cases cited (5)

  • Mukisa Biscuit Manufacturing Ltd-vs-West End Distributors Ltd
    (1969) EA 696
  • Peter Mungai-vs-Joseph Kuria and another, Leah Njeri Ndichu (Interested party)
    (2022) eKLR
  • Mary Osundwa-vs-Sugar Company Ltd
    (2002) eKLR
  • Ndiwa Chesebe-vs-John Chesebe Sikuku
    (2022) eKLR
  • Kakuta Maimai Hamisi-vs-Peris Pesi Tobiko and 2 others
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land (land reference Kabondo/Kodhoch East/1437); specific provision not stated in the judgment

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, "Ajore v Owidi (Environment & Land Case 10 of 2021) [2024] KEELC 7337 (KLR)", Case Analysis (2024). Environment & Land Case 10 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7337/eng@2024-11-05

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