Koske & 2 others v Kitur & 23 others (Environment & Land Case 51 of 2013 & 9 of 2011 (Consolidated)) [2025] KEELC 359 (KLR)
The bottom line
#The Environment and Land Court dismissed landowners' eviction claims because their titles were defective and the suit was filed too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved ownership of Kericho/Chemoiben/20 and 24 and the Defendants' trespass to the requisite standard
No. The Plaintiffs failed to discharge the evidential burden; the surveyor's evidence left a glaring gap and no evidence established the position on the ground or the extent of the restrictions
Although the 1st Plaintiff produced a title deed and the Land Registrar confirmed registrations, both parcels carried restrictions relating to the Kericho-Sotik road that had never been lifted, and the registrations were effected while the restrictions subsisted, which was irregular. The surveyor relied on a 1970 map and admitted he had never visited the ground, so the actual position of the titles on the ground vis-à-vis the Defendants' title to LR 8839/61 was never established. Following Munyu Maina, the Plaintiffs had to prove the legality of their acquisition, which they did not do.
Whether the effect of restrictions on the register defeated the Plaintiffs' claims
Yes. The suit parcels could not lawfully be transferred while the restrictions subsisted, and no evidence showed the restrictions had been removed or varied
Sections 24 and 25 of the Land Registration Act protect proprietors' rights, but Section 26(1) makes title subject to encumbrances, easements, restrictions and conditions endorsed in the certificate. The green cards showed restrictions noting that part of the Sotik road passed through the parcels. Under Sections 76, 77 and 78 a restriction endures until lifted or varied by the Registrar or the court. The transfers to the 1st Plaintiff (2012) and to Baseline Kiprono Mutai (2017) were effected while the restrictions subsisted and were therefore not lawful, and no evidence showed any removal or variation.
Whether the Plaintiffs' suits were time barred
Yes. The claims were in substance claims to recover land, disguised as trespass, and were filed more than twelve years after the cause of action accrued
PW1 placed the trespass in 1972 and the Defendants' evidence showed Joshua Buses took possession of LR 8839/61 in 1991 and erected permanent buildings. Under Section 7 of the Limitation of Actions Act an action to recover land may not be brought after twelve years. The suits filed in 2011 and 2013, though framed in trespass, were in substance recovery of land claims and were therefore statute barred, robbing the court of jurisdiction.
Jurisdiction consequent upon the claims being statute-barred
The court lacked jurisdiction to entertain the claims and was obliged to down its tools
Relying on Bosire Ongero v Royal Media Services and Owners of the Motor Vessel 'Lillian S', the court held that limitation goes to jurisdiction. Once satisfied that the claims were statute barred, the court had no power to take any further step and had to dismiss the suits.
Legal principles established
#- A registered proprietor must go beyond the title instrument and prove the legality of how the title was acquired, especially where the title is impugned
- Land subject to a subsisting restriction cannot be lawfully transferred until the restriction is lifted or varied
- A claim to recover land filed beyond twelve years is statute-barred and deprives the court of jurisdiction, even if disguised as a claim in trespass
- Limitation goes to the jurisdiction of the court; where a matter is statute barred the court has no jurisdiction to entertain it
Court orders
#- 1.Plaintiffs' consolidated suits are dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution; suit dismissed for lack of jurisdiction as claim was statute-barred under Section 7 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koske & 2 others v Kitur & 23 others (Environment & Land Case 51 of 2013 & 9 of 2011 (Consolidated)) [2025] KEELC 359 (KLR)", Case Analysis (2025). ELC Case No. 51 of 2013 (Consolidated with ELC Case No. 9 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/359/eng@2025-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.