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ELCPartially AllowedNot stated in judgment (Thika ELC; Plaint dated 7/6/2024)· [2025] KEELC 661 (KLR)

Kogi (Legal representative of the Estate of the Late Wallace Kogi Mwaura - Deceased) & another v Mburu (Legal representative and/or administrator to the Estate of the Late Miriam Muthoni Mburu - Deceased) & another (Environment & Land Case E094 of 2024) [2025] KEELC 661 (KLR)

Environment and Land Court
20 February 2025
2,620 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked any dealings on disputed family land in Gatamaiyu for 12 months, ruling trust claims aren't time-barred even decades later.

What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs sued over land parcel Gatamaiyu/Kamuchege/415 (10.4 acres), contending that the 1st Plaintiff's father and the 2nd Plaintiff had purchased 5 and 3 acres respectively in 1958, and that the parcels were consolidated and registered in the name of Zipporah Njeri Mwaura (deceased), their mother, to hold in trust for them. They alleged she wrongfully willed the property away under a will dated 30/11/1988, leading to its subdivision into parcels 2027-2031, and sought temporary injunctions restraining subdivision, sale, transfer, construction and trespass. Alongside the suit they filed a Notice of Motion dated 7/6/2024. The Defendants opposed through a replying affidavit and a Preliminary Objection dated 18/7/2024, arguing limitation under the Limitation of Actions Act, forum shopping, completion of the administration of the estate under Section 83 of the Law of Succession Act, and lack of geographical jurisdiction. Written submissions were directed; only the Plaintiffs filed. The court framed two issues: the merits of the Preliminary Objection and the injunction threshold. Applying Mukisa Biscuits and Oraro v Mbaja, the court held the limitation ground failed because Section 20 of the Limitation of Actions Act exempts beneficiary actions under a trust, and the geographical jurisdiction ground failed because the ELC at Thika covers all of Kiambu County. The Preliminary Objection was dismissed. On the injunction, applying Nguruman, a prima facie case was found, but irreparable injury was not established since any loss could be compensated in damages; the court disposed of the application on the balance of convenience, ordering that there be no dealings in the land register for the suit parcel or its subdivisions, with the status quo orders expiring after 12 months unless extended, and costs in the cause.

Key legal issues

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01

Whether the suit is time-barred under the Limitation of Actions Act

Holding

Not time-barred; the claim is by a beneficiary under a trust and falls within Section 20 of the Limitation of Actions Act

Reasoning

The Defendants argued the suit was caught by limitation under Cap 22. The Plaintiffs invoked Section 20, which excludes limitation periods for beneficiary actions to recover trust property or for fraudulent breach of trust. The court agreed, holding the trust claim fell within that exemption, and rejected this ground of the Preliminary Objection.

p. 4
02

Whether the court has geographical jurisdiction

Holding

The ELC at Thika has jurisdiction over all properties in Kiambu County, including Githunguri

Reasoning

The Defendants contended that because the suit land is in Githunguri, the Thika court lacked geographical jurisdiction. The court held that the ELC at Thika's jurisdiction extends to all properties situated in Kiambu County, and therefore dismissed the Preliminary Objection on that ground as well.

p. 4
03

Whether the Plaintiffs met the threshold for an interlocutory injunction

Holding

A prima facie case was established, but irreparable injury was not; the application was disposed of on the balance of convenience with status quo orders for 12 months

Reasoning

Applying Nguruman, the court found the Plaintiffs' trust claim gave them a prima facie case. However, no evidence showed possession, and the concluded succession proceedings meant any loss could be compensated by damages upon valuation. The court therefore declined a full injunction and instead maintained the status quo in registration and occupancy for 12 months.

p. 5

Legal principles established

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  • Limitation periods under the Limitation of Actions Act do not apply to an action by a beneficiary under a trust to recover trust property or for fraudulent breach of trust (Section 20)
  • The Environment and Land Court at Thika has geographical jurisdiction over land disputes relating to all properties situated in Kiambu County
  • Where irreparable injury is not established, an interlocutory injunction may be disposed of on a balance of convenience by maintaining the status quo

Court orders

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  1. 1.Preliminary Objection dated 18/7/2024 dismissed
  2. 2.Pending the hearing and determination of the suit, no dealings in the land register relating to Land Parcel Gatamaiyu/Kamuchege/415 or its subdivisions Gatamaiyu/Kamuchege/2027 to 2031
  3. 3.Status quo orders to expire after 12 months unless extended by the court
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Limitation of Actions ActSection 20
  • Limitation of Actions Act (Cap 22)Generally
  • Law of Succession Act (Cap 160)Section 83

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) E.A. 696
  • Oraro v Mbaja
    [2005] KLR 141
  • Samson M'itwamwari Mumiira vs Jackson Kibeteru & Another
    [2007] eKLR
  • Ndiwa Chesebe vs John Chesebe Sikuku
    [2022] eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land situate in Kiambu County (Article 162(2)(b) jurisdiction; geographical jurisdiction asserted over all Kiambu County properties)

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, "Kogi (Legal representative of the Estate of the Late Wallace Kogi Mwaura - Deceased) & another v Mburu (Legal representative and/or administrator to the Estate of the Late Miriam Muthoni Mburu - Deceased) & another (Environment & Land Case E094 of 2024) [2025] KEELC 661 (KLR)", Case Analysis (2025). Not stated in judgment (Thika ELC; Plaint dated 7/6/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/661/eng@2025-02-20

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