[2018] KEELC 1948 (KLR)
The court found that although the Plaintiffs were registered as owners of the Suit Property in 1979 and had produced evidence of purchase and payment, their claim for eviction was statute-barred under the Limitation of Actions Act. The Plaintiffs filed the suit in 2009, more than twelve years after their right to...
Source-derived case information.
- Citation
- [2018] KEELC 1948 (KLR)
- Parties
- Plaintiff: Cecilia Wanjiru Kamau; Plaintiff: Peter Kamau Kahungi; Defendant: Geoffrey Thuo Mbira; Defendant: Anthony Kimani Mbira; Defendant: Serah Wanjiru Mbira; Defendant: Edwin Mubi Mbira
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 53 of 2009
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- suit dismissed
- Judges
- AK Bor
- Legal Topics
- Eviction, Limitation of Actions, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Wanjiru Kamau
Plaintiff
Peter Kamau Kahungi
Plaintiff
Geoffrey Thuo Mbira
Defendant
Anthony Kimani Mbira
Defendant
Serah Wanjiru Mbira
Defendant
Edwin Mubi Mbira
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiffs are entitled to an eviction order against the Defendants from the Suit Property.
- 2 Whether the Plaintiffs' claim is statute-barred under the Limitation of Actions Act.
Ratio Decidendi
The court found that although the Plaintiffs were registered as owners of the Suit Property in 1979 and had produced evidence of purchase and payment, their claim for eviction was statute-barred under the Limitation of Actions Act. The Plaintiffs filed the suit in 2009, more than twelve years after their right to claim possession arose upon purchase and registration in 1979. The court held that the Plaintiffs should have sought recovery of possession within the statutory limitation period. The absence of clear evidence as to why vacant possession was not given at the time of purchase did not alter the statutory bar. Consequently, the suit was dismissed as time-barred.
Court Disposition
suit dismissed
Orders
- The Plaintiffs' suit is dismissed as statute-barred under the Limitation of Actions Act.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 53 OF 2009
CECILIA WANJIRU KAMAU......................................................1ST PLAINTIFF
PETER KAMAU KAHUNGI.........................................................2ND PLAINTIFF
VERSUS
GEOFFREY THUO MBIRA.......................................................1ST DEFENDANT
ANTHONY KIMANI MBIRA....................................................2ND DEFENDANT
SERAH WANJIRU MBIRA........................................................3RD DEFENDANT
EDWIN MUBI MBIRA................................................................4TH DEFENDANT
JUDGEMENT
1. The Plaintiffs, who are husband and wife seek an eviction order against the Defendants from L.R. No. Kiambaa/Karuri/T.538 (“the Suit Property”) which they claim they purchased from the Thuo Mubi, the Defendants’ father in 1979 under a sale agreement. The Defendants were registered as joint owners of the Suit Property on 30. 11. 1979. They filed this suit on 12/2/2009 claiming that the Defendants have unlawfully occupied their land and have refused to vacate the land despite numerous requests to do so.
2. The Plaintiffs initially applied to have the Defendants hand over possession of the Suit Property to the Plaintiffs but Sitati J. in her ruling delivered on 16. 9.2010 directed the Plaintiffs to serve summons to enter appearance upon the Defendants. The Affidavit of service sworn by Willie Mwendwa Velle on 16/12/2010 confirms that the Defendants were served on 13/11/2010. The hearing notice was served on the firm of R. H. Wanga & Company Advocates on 4/4/2018 notifying them that this suit would be heard on 3/7/2018. The Defendants did not attend court on 3/7/2018 when the hearing proceeded.
3. The 1st Plaintiff gave evidence on behalf of the 2nd Plaintiff who was said to be unwell. She stated that she was registered with her husband as the owners of the Suit Property in 1979. Despite requests to vacate the land, the Defendants have refused to move out of the Suit Property. A copy of the official search produced by the Plaintiff dated 28/1/2009 confirms that the Plaintiffs were registered as owners of the Suit Property on 30/11/1979.
4. The abstract of title showed that the 4th Defendant had placed a caution against the Suit Property on 28/7/1989 claiming beneficial interest. The demand letters produced by the Plaintiff are dated 11/1/2009 while the title deed over the Suit Property is dated 11/6/2013. She also produced some documents in Kikuyu language which seem to give an indication of when payments were made. One of these was translated to English by John Chege Gatete and is dated 10/10/1997 stating that Geoffrey Thuo Mubi had received the balance of Kshs. 6613 and that the 2nd Plaintiff did not owe him any money. The terms of the agreement are not clear. The date for completion was also not clear from the documents relied on by the Plaintiff.
5. The issue for determination is whether the reliefs sought by the Plaintiff should be granted. The Plaintiffs bought the land in 1979 and were registered as the owners of the Suit Property. It is not clear why Geoffrey Thuo Mubi, the vendor, did not give the Plaintiffs vacant possession even as at October 1997 when they paid him the balance of the purchase price. It would have been his duty to give possession to the Plaintiffs.
6. The court is inclined to find that the Plaintiffs claim for the suit land is statute-barred by the Limitation of Actions Act having been filed more than twelve years from the date the Plaintiffs’ claim arose when they purchased the Suit Property. The suit is dismissed with no orders as to costs.
Dated and delivered at Nairobi this 30th day of August 2018.
K. BOR
JUDGE
In the presence of: -
Ms. Athman holding brief for Mrs. Wambugu for the Plaintiff
No appearance for the Defendants
Mr. V. Owuor- Court