[2018] KEELC 3073 (KLR)
The court found that the applicant's claim, being for recovery of land purchased in 1986, was subject to the twelve-year limitation period under Section 7 of the Limitation of Actions Act. The statutory provision is mandatory, and the court has no discretion to extend time for filing such a suit once the limitation...
Source-derived case information.
- Citation
- [2018] KEELC 3073 (KLR)
- Parties
- Applicant: Benjamin Wamugi Waweru; Respondent: Simon Ngunyi Mutahi; Respondent: Reuben Gitahi Wangombe; Respondent: Pilsila Nyokabi Macharia; Respondent: George Muturi Wangombe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 22 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- L Waithaka
- Legal Topics
- Limitation Periods, Recovery of Land, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Wamugi Waweru
Applicant
Simon Ngunyi Mutahi
Respondent
Reuben Gitahi Wangombe
Respondent
Pilsila Nyokabi Macharia
Respondent
George Muturi Wangombe
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 for recovery of land out of time.
- 2 Whether the provisions of Section 7 of the Limitation of Actions Act bar the applicant's intended claim.
Ratio Decidendi
The court found that the applicant's claim, being for recovery of land purchased in 1986, was subject to the twelve-year limitation period under Section 7 of the Limitation of Actions Act. The statutory provision is mandatory, and the court has no discretion to extend time for filing such a suit once the limitation period has lapsed. As the application was made well beyond the twelve-year period, the court held that it was barred by statute and dismissed the application for leave to file the suit out of time.
Court Disposition
application dismissed
Orders
- The application dated 28th September, 2017 is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC MISC. APPL. NO. 22 OF 2017
BENJAMIN WAMUGI WAWERU....................................................PLAINTIFF/APPLICANT
-VERSUS-
SIMON NGUNYI MUTAHI..............................................1ST DEFENDANT/RESPONDENT
REUBEN GITAHI WANGOMBE.....................................2ND DEFENDANT/RESPONDENT
PILSILA NYOKABI MACHARIA......................................RD DEFENDANT/RESPONDENT
GEORGE MUTURI WANGOMBE...................................4TH DEFENDANT/RESPONDENT
RULING
1. The application is dated 28th September, 2017 seeking orders that the applicant be allowed to file his intended land matter out of time.
2. The application (without grounds) is supported by the undated affidavit sworn by Benjamin Wamugi Waweru. He deposes that he purchased 2 plots of land at Matanya in 1986 but was unable to utilize and/or develop them as he was financially constrained; that he later discovered through his caretaker, that his land had been sold to other persons; that he never filed a suit within the stipulated time because he was busy following up the issue with Matanya land company officials whom he believed would solve his problem but this proved futile.
3. The application is not opposed.
4. Through an affidavit of service sworn by David N. Ndungu, an authorized process server on 4th April 2018, it is deposed in paragraphs 3, 4 and 5 that the intended defendants were served in the presence of the Senior Chief, Tigithi location on 30th March, 2018.
5. I have considered the application, the grounds on its face and the supporting affidavit. My considered view on the application is as follows: Section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya provides:-
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
6. From the supporting affidavit, the applicant’s claim is for recovery of land which he purchased at Matanya in 1986. Section 7 of the Limitation of Actions Act is couched in mandatory terms. In a civil suit (which is the suit the applicant has elected to file), I find my hands are tied on the issue of time and I dismiss the application dated 28th September, 2017.
Dated, signed and delivered in open court at Nyeri this 3rd day of May, 2018.
L N WAITHAKA
JUDGE
Coram:
Benjamin Wamugi Waweru – plaintiff/applicant
N/A for the respondents
Court assistant - Esther