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ELCPartially AllowedNot stated in judgment (application dated 30.09.2024)· [2025] KEELC 4840 (KLR)

Obwoge & another v Momwamu & 6 others (Land Case E028 of 2024) [2025] KEELC 4840 (KLR)

Environment and Land Court
26 June 2025
2,378 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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The Plaintiffs/Applicants, John Obwoge and Maoba Nyakibo, moved the Environment and Land Court at Kilgoris by an application dated 30.09.2024 seeking inhibitory orders restraining the Defendants from transferring Transmara/Moyoi/2545 and 2546, and a temporary injunction restraining development on the parcels, pending hearing of the suit. They claimed they jointly purchased Plot No. 8 Moyoi Adjudication Section, that the 1st Defendant held the resultant title (Transmara/Moyoi/230) in trust for them, and that the parcel was subdivided and transferred to subsequent purchasers in breach of trust. The Defendants opposed, raising limitation under Section 7 of the Limitation of Actions Act, want of capacity under Section 82 of the Law of Succession Act, absence of any connection between Plot 8 and Transmara/Moyoi/230, and indefeasibility of title as bona fide purchasers. The court held the suit not time barred because trust was pleaded and particularised, bringing it within the Section 20(1) exception, following Kabogo v Gitau. However, the suits on behalf of seven deceased persons' estates were struck out for want of grants of letters of administration, only the Plaintiffs' personal suit being competent. On the injunction, applying Giella v Cassman Brown and Mrao, the court found no prima facie case, the Applicants having failed to prove the connection between Plot 8 and Transmara/Moyoi/230. The injunction and inhibitory orders were refused, but under practice direction 28K the court ordered maintenance of status quo on the ground and on the register pending determination of the suit. Costs were in the cause.

Key legal issues

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01

Whether the suit is time barred under Section 7 of the Limitation of Actions Act

Holding

The suit is not time barred because trust was pleaded and particularised, bringing it within the Section 20(1) exception.

Reasoning

The cause of action first accrued on 02.03.2001 when the suit property was registered in the 1st Defendant's name, and under Section 7 would be time barred after 12 years. However, the Plaintiffs pleaded trust at paragraph 10 and particularised breach of trust at paragraph 16 of the Plaint, making this a suit by beneficiaries to recover land under a trust, which falls under Section 20(1). The court followed Kabogo v Gitau, holding Section 7 inoperative on such pleadings.

p. 4
02

Whether the Plaintiffs had capacity to sue on behalf of deceased persons' estates under Section 82 of the Law of Succession Act

Holding

Only the Plaintiffs' personal suit is competent; the suits filed on behalf of the deceased Estates are struck out.

Reasoning

The Plaintiffs sued on their own behalf and on behalf of the Estates of 7 deceased persons but did not exhibit letters of administration. Section 82 vests powers to institute suits on behalf of deceased persons in personal representatives only. The Applicants conceded they had no such power in their supplementary affidavit, so only their personal suit survives; the Plaint must be amended.

p. 5
03

Whether the application for injunction and inhibitory orders is merited

Holding

The application is not merited; the Applicants failed to establish a prima facie case, though status quo orders were issued to preserve the property.

Reasoning

Applying Giella v Cassman Brown, the Applicants bore the burden of establishing a prima facie case with probability of success. Having been granted leave to file a supplementary affidavit, they failed to establish the connection between Plot No. 8 Moyoi Adjudication Section and Transmara/Moyoi/230 given the variance in acreage. Without a prima facie case, the other Giella principles need not be considered. Nonetheless, under practice direction 28K the court issued status quo orders to preserve the suit property.

p. 5

Legal principles established

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  • A suit by beneficiaries under a trust to recover trust land falls within the exceptions under Section 20(1) of the Limitation of Actions Act and is not barred by Section 7's twelve-year limitation period where trust is pleaded and particularised.
  • Only personal representatives may institute suits on behalf of deceased persons' estates under Section 82 of the Law of Succession Act.
  • Where a prima facie case is not established, irreparable injury and balance of convenience need no consideration.

Court orders

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  1. 1.Suit filed on behalf of the other deceased Estates without grants of letters of representation struck out; Plaintiffs to amend the Plaint to reflect this position
  2. 2.Order for maintenance of status quo on the ground: the person in occupation to remain in occupation and to cultivate but not to undertake construction of new buildings thereon
  3. 3.Status quo order on the register of Transmara/Moyoi/2545 and Transmara/Moyoi/2546 maintaining ownership to the current registered owners pending hearing and determination of the suit
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 20(1)
  • Limitation of Actions ActSection 4
  • Law of Succession ActSection 82
  • Land Registration ActSections 73(2) and 3
  • Practice Directions (Gazette Notice No. 5178/2014)Practice direction number 28K

Cases cited (4)

  • Kabogo v Gitau
    Civil Appeal No. 82/2019 (2025) KECA 193 KLR
  • Giella v Cassman Brown
  • Mrao Limited v First American Bank Limited
  • Kenya Commercial Finance Limited Afraha Stadium
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; practice direction number 28K issued vide Gazette Notice No. 5178/2014 invoked for status quo orders

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, "Obwoge & another v Momwamu & 6 others (Land Case E028 of 2024) [2025] KEELC 4840 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 30.09.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4840/eng@2025-06-26

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