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ELCAllowedKajiado ELC Suit (case number not stated in judgment)· [2021] KEELC 96 (KLR)

Munket Pulei v Menta Enerisa Risa Pulei & 7 others [2021] KEELC 96 (KLR)

Environment and Land Court
20 December 2021
MGM.N. Gicheru
1,203 words in judgment
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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 Plaintiff, son and administrator of the estate of Kasaine Pulei Kinyoei, sued over the unequal subdivision of land originally registered to his father and Risa Ole Munii Pulei. After the sale of 20.24 hectares to Moses Ting'a, the remaining land was to be shared equally, creating parcels 347 and 348. A survey, corroborated by an undisputed Land Registrar's report, showed parcel 348 at 123.63 hectares and parcel 347 at 96.77 hectares, a discrepancy of approximately 26.86 hectares in favour of the Defendants, who held the six subdivisions carved out of parcel 347. The Plaintiff sought a declaration that the subdivision was fraudulent and null and void, revocation of the six titles and reversion to the parent title, resurvey, equal division and re-establishment of beacons. The Defendants raised limitation under Section 7 of the Limitation of Actions Act and argued that third-party purchasers had not been joined. The court framed two issues. On limitation, it held the claim was an action for relief from the consequences of a mistake, so under Section 26 of the Limitation of Actions Act time did not begin to run until discovery of the mistake. On joinder, it held the relief could be recovered from the Defendants, in whose custody the disputed land remained, and that under Order 1 Rule 15 of the Civil Procedure Rules it was for the Defendants, not the Plaintiff, to join third parties. On costs, the court noted the uncontroverted plea that settlement attempts were rebuffed. Judgment was entered as prayed in the plaint, dated and delivered virtually at Kajiado on 20th December 2021 by M.N. Gicheru J.

Key legal issues

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01

Whether the Plaintiff's claim was time barred under Section 7 of the Limitation of Actions Act

Holding

The claim is not time barred because it is an action for relief from the consequences of a mistake, and time runs only from discovery of the mistake under Section 26.

Reasoning

The court found as a fact that a mistake occurred in the subdivision, leaving the Defendants' parcel 26.86 hectares larger than the Plaintiff's. Since the Registrar's report showing the discrepancy was undisputed, and the action is one for relief from a mistake, Section 26 of the Limitation of Actions Act postpones the start of limitation until discovery or constructive discovery of the mistake.

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02

Whether failure to join third parties who purchased land from the Defendants was fatal to the suit

Holding

Failure to join third parties was not fatal; relief could be recovered from the Defendants, who bore the duty of joining necessary parties under Order 1 Rule 15.

Reasoning

The court held that the land lost through the mistake remained in the Defendants' custody, so relief could be recovered from them directly. Moreover, under Order 1 Rule 15 of the Civil Procedure Rules, the burden of joining third parties rests on the defendant asserting their interest, not on the plaintiff, since defendants know such third parties better.

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Legal principles established

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  • Relief from the consequences of a mistake in land subdivision is not defeated by limitation until the plaintiff discovers or could with reasonable diligence have discovered the mistake.
  • A defendant who contends that third parties ought to be joined must themselves join them under Order 1 Rule 15 of the Civil Procedure Rules.

Court orders

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  1. 1.Judgment entered as prayed for in the plaint
  2. 2.Declaration that the subdivision of land parcel KAJIADO/KIPETO/347 into parcels 1792-1797 was fraudulent and null and void
  3. 3.Direction to the 7th and 8th Defendants to recall and revoke title deeds for parcels KAJIADO/KIPETO/1792-1797 and subsequent subdivisions, reverting them to parent title number 347
  4. 4.Resurvey of parcels 347 and 348 to establish total acreage, division into two equal portions and re-establishment of boundary beacons
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Munket Pulei v Menta Enerisa Risa Pulei & 7 others [2021] KEELC 96 (KLR)", Case Analysis (2021). Kajiado ELC Suit (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/96/eng@2021-12-20

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