[2019] KEELC 3890 (KLR)
The court found that the transaction at the heart of the dispute was concluded in 1990 and that all parties directly involved were deceased. The applicant failed to provide any explanation for the 28-year delay in seeking to file the suit. The purpose of limitation statutes is to prevent stale claims and protect...
Source-derived case information.
- Citation
- [2019] KEELC 3890 (KLR)
- Parties
- Applicant: Anderson Chengo Kapombe (As Administrator of the Estate of Kapombe Baya Thoya (Deceased)); Respondent: Said Salim Basalim (As Administrator of the Estate of Salim Basalim (Deceased))
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 206 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- JO Olola
- Legal Topics
- Limitation of Actions, Land Title Cancellation, Public Auction Disputes, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anderson Chengo Kapombe (As Administrator of the Estate of Kapombe Baya Thoya (Deceased))
Applicant
Said Salim Basalim (As Administrator of the Estate of Salim Basalim (Deceased))
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a suit out of time regarding the cancellation of a land title.
- 2 Whether sufficient explanation has been provided for the 28-year delay in bringing the suit.
Ratio Decidendi
The court found that the transaction at the heart of the dispute was concluded in 1990 and that all parties directly involved were deceased. The applicant failed to provide any explanation for the 28-year delay in seeking to file the suit. The purpose of limitation statutes is to prevent stale claims and protect defendants from prejudice due to lost evidence over time. In the absence of any justification for the delay, the court held that there was no merit in the application and dismissed it.
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CASE NO. 206 OF 2018
ANDERSON CHENGO KAPOMBE (As Administrator of the Estate ofKAPOMBE
BAYA THOYA (DECEASED)…………..............………PLAINTIFF/APPLICANT
VERSUS
SAID SALIM BASALIM (As Administrator of the Estate ofSALIM
BASALIM (DECEASED)..........................................DEFENDANT/RESPONDENT
RULING
1. By this Notice of Motion application dated 2nd November 2018, the Plaintiff prays for leave to file a suit out of time. In addition he prays that the Court be pleased to order that the Plaint annexed to the application be deemed as duly filed.
2. The application which is supported by an affidavit sworn by the Plaintiff is premised on the grounds:-
i) That Kapombe Baya Thoya (now deceased) was the registered proprietor of Plot No. Gede/Mijimboni/249;
ii) That the said Plot was sold by public auction in 1990 over a debt of Kshs 40,000/- and one Hassan Juma Athman (also since deceased) was declared the highest bidder;
iii) That after the auction both Kapombe Baya Thoya and Hassan Juma Athman agreed that Kapombe be allowed to refund a total of Kshs 50,000/- to Hassan upon which Kapombe would be allowed to retain the land;
iv) That despite the refund of the money as agreed, the said Hassan went ahead to sell the land to the Intended Defendant herein;
v) That the Plaintiff intends to file a suit out of time seeking cancellation of the title deed in the name of the Intended Defendant.
3. The object of any limitation enactment is to prevent a Plaintiff from prosecuting stale claims on the one hand and on the other hand to protect a defendant after he had lost the evidence for his defence from being disturbed after a long lapse of time.
4. The transaction giving rise to the claim herein was apparently concluded in 1990. All three persons who were originally involved in the transaction are long dead. No explanation has been offered whatsoever in the application before me why no action was taken to bring up this suit for the past 28 years.
5. In the circumstances, I find no merit in the application before me. The same is dismissed with no order as to costs.
Dated, signed and delivered at Malindi this 9th day of April, 2019.
J.O. OLOLA
JUDGE