Silas & another v Machwanda & another (Environment and Land Appeal E001 of 2023) [2025] KEELC 225 (KLR)
The bottom line
#The Environment and Land Court dismissed a land claim as too late, confirming Kenyan courts must enforce the twelve-year limit for recovering land.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim for recovery of land was barred by Section 7 of the Limitation of Actions Act
Yes. The cause of action accrued on 22nd August 1996 and 16th June 1999, so the action to recover the land should have been filed by 22nd August 2008 and 16th June 2011 respectively; the suit filed on 23rd November 2020 was statute-barred.
Section 7 bars actions to recover land after twelve years from when the right of action accrued. The Amended Plaint disclosed accrual dates of 22nd August 1996 (three acres purchased) and 16th June 1999 (one acre acquired through consent). The Respondents' argument that they were enforcing a land sale transaction did not assist, since a contractual claim would face an even shorter six-year period under Section 4(1)(a).
Whether the pendency of an application for review barred the appeal
No. The conflict between review and appeal is resolved by having the issues determined in the appeal; the review application merges in the appeal.
While Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules preclude an appeal and review over the same decree co-existing, the established resolution is that the review must give way to the appeal. The pending review before the Subordinate Court would be resolved by implication by the outcome of this appeal.
Whether the Subordinate Court erred by not addressing the limitation issue raised in defence and submissions
Yes; the Learned Magistrate did not address limitation in the judgment despite it being raised, which the appellate court identified as a significant omission going to jurisdiction.
The Appellants raised limitation both in their defence and final submissions, but the trial court's judgment addressed only constructive trust. Because jurisdiction is fundamental and the suit was on its face time-barred, the appeal succeeded on this ground alone, rendering determination of the remaining issues unnecessary.
Legal principles established
#- Jurisdiction is the very life and soul of any judicial proceedings; without it the proceedings come to an end
- An appeal and an application for review in respect of the same decree cannot co-exist; the review merges in the appeal
- On a first appeal the court is obliged to re-consider and re-evaluate the pleadings and material on record and determine whether the conclusions reached below should stand
Court orders
#- 1.The judgment of the Subordinate Court delivered on 11th February 2022 is set aside
- 2.The judgment is replaced with an order dismissing the Respondents' case
- 3.The Appellants are awarded costs of the suit in the Subordinate Court
- 4.The Appellants are awarded costs of this appeal
- On appeal from
- Subordinate Court (Senior Principal Magistrate's Court)
- Not stated in judgment
- Jurisdiction invoked
- First appeal from the Subordinate Court under the Environment and Land Court Act; suit concerning title to land under Article 162(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silas & another v Machwanda & another (Environment and Land Appeal E001 of 2023) [2025] KEELC 225 (KLR)", Case Analysis (2025). ELC Appeal (Kakamega) - Memorandum of Appeal dated 30th January 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/225/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.