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ELCDismissedELC Case No. 51 of 2013 (Consolidated with ELC Case No. 9 of 2011)· [2025] KEELC 359 (KLR)

Koske & 2 others v Kitur & 23 others (Environment & Land Case 51 of 2013 & 9 of 2011 (Consolidated)) [2025] KEELC 359 (KLR)

Environment and Land Court
6 February 2025
15,327 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~61 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This consolidated suit, heard at the Environment and Land Court at Naivasha, combined ELC No. 51 of 2013 (1st and 2nd Plaintiffs v 1st to 20th Defendants) and ELC No. 9 of 2011 (3rd Plaintiff v 21st to 24th Defendants), consolidated by a Ruling dated 27th March 2015. The Plaintiffs claimed ownership of parcels Kericho/Chemoiben/20 and 24 in Litein and sought eviction, permanent injunction, mesne profits and costs against occupants they alleged were trespassers, some claiming to be tenants of the late Joshua Chepkwony Arap Buses. The Defendants denied the claimed parcels existed as such, asserting they occupied LR No. 8839/61 (Grant No. IR 4758), a 0.0575-hectare parcel leased to their father Joshua Buses for 99 years from 1st January 1991 after compulsory acquisition of land for the Kericho-Sotik road, and pleaded limitation. The court framed two issues: whether the Plaintiffs proved their case on a balance of probabilities, and whether the suits were time barred. The court held that although titles and green cards were produced, the suit parcels were subject to restrictions noting the road passed through them which were never lifted, making the subsequent registrations irregular; the surveyor's evidence based on an unamended 1970 map left a glaring gap; and applying Munyu Maina the Plaintiffs failed to prove the legality of their titles. Further, the claims were in substance land recovery claims disguised as trespass and were statute-barred under Section 7 of the Limitation of Actions Act, depriving the court of jurisdiction. Both suits were dismissed with costs.

Key legal issues

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01

Whether the Plaintiffs proved ownership of Kericho/Chemoiben/20 and 24 and the Defendants' trespass to the requisite standard

Holding

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

Reasoning

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.

p. 24
02

Whether the effect of restrictions on the register defeated the Plaintiffs' claims

Holding

Yes. The suit parcels could not lawfully be transferred while the restrictions subsisted, and no evidence showed the restrictions had been removed or varied

Reasoning

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.

p. 24
03

Whether the Plaintiffs' suits were time barred

Holding

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

Reasoning

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.

p. 25
04

Jurisdiction consequent upon the claims being statute-barred

Holding

The court lacked jurisdiction to entertain the claims and was obliged to down its tools

Reasoning

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.

p. 26

Legal principles established

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  • 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

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  1. 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

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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, "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.