Obwoge & another v Momwamu & 6 others (Land Case E028 of 2024) [2025] KEELC 4840 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit is time barred under Section 7 of the Limitation of Actions Act
The suit is not time barred because trust was pleaded and particularised, bringing it within the Section 20(1) exception.
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.
Whether the Plaintiffs had capacity to sue on behalf of deceased persons' estates under Section 82 of the Law of Succession Act
Only the Plaintiffs' personal suit is competent; the suits filed on behalf of the deceased Estates are struck out.
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.
Whether the application for injunction and inhibitory orders is merited
The application is not merited; the Applicants failed to establish a prima facie case, though status quo orders were issued to preserve the property.
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.
Legal principles established
#- 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
#- 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.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.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.Costs of the application in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.