[2018] KEELC 1026 (KLR)
The court found that the plaintiff’s claim was statute barred, as the last payment was made in 2010 and the suit was not filed until 2016, exceeding the six-year limitation period for contractual claims. Furthermore, the plaintiff did not meet the conditions of the allocation offer, having made the first payment...
Source-derived case information.
- Citation
- [2018] KEELC 1026 (KLR)
- Parties
- Plaintiff: Charles Kamau Ngunyi; Defendant: Nairobi City County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1414 of 2016
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- suit dismissed with costs to the defendant
- Legal Topics
- Allocation of Land, Statute of Limitations, Refund of Payments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kamau Ngunyi
Plaintiff
Nairobi City County
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff’s suit is statute barred under the Limitation of Actions Act.
- 2 Whether the plaintiff is entitled to a refund of Kshs.27,700 paid to the defendant’s predecessor.
- 3 Whether the plaintiff met the conditions of the allocation offer.
Ratio Decidendi
The court found that the plaintiff’s claim was statute barred, as the last payment was made in 2010 and the suit was not filed until 2016, exceeding the six-year limitation period for contractual claims. Furthermore, the plaintiff did not meet the conditions of the allocation offer, having made the first payment five years after the offer, which had lapsed by then. The court also noted contradictions in the plaintiff’s evidence regarding the manner of acquisition of the plot. Consequently, the plaintiff was not entitled to a refund, and the suit was dismissed with costs to the defendant.
Court Disposition
suit dismissed with costs to the defendant
Orders
- The plaintiff’s suit is dismissed.
- The plaintiff shall pay costs to the defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC NO.1414 OF 2016
CHARLES KAMAU NGUNYI..............................................PLAINTIFF
=VERSUS=
NAIROBI CITY COUNTY.................................................DEFENDANT
JUDGEMENT
1. The Plaintiff filed this suit against the defendant seeking refund of Kshs.27,700/= which he paid to the defendant’s predecessor the Nairobi City Council . The Plaintiff testified that on 17th July 2003, he was allocated plot No.B-48/1 by the City Council. He paid all that was required but on going to the ground, he found that the plot was occupied by someone else who claimed that it was plot No.B 51. He went to the offices of Nairobi City Council seeking allocation of an alternative plot but he was not given any.
2. During the hearing of this suit, the defendant’s counsel indicated that they were not going to call any evidence. The defendant’s counsel indicated that he was going to file submissions which he did. The defendants submitted that the plaintiff’s claim was statute barred and that in any case, the plaintiff’s evidence did not tally with his pleadings.
3. I have considered the evidence adduced by the plaintiff as well as the submissions by the parties herein. The issues for determination are firstly whether the plaintiff’s suit is statute barred and secondly whether he is entitled to a refund as claimed. The plaintiff produced a copy of a letter of allocation dated 17th July 2005 which shows that he was allocated plot No.B- 48/1 Kayole Shopping Centre ( extension). According to this letter, the plaintiff was expected to pay the amounts indicated in the letter within 30 days of the date of the letter or else the allocation would be deemed to have lapsed.
4. The plaintiff made the first payment of Kshs.500/= on 20. 8.2008 . This was a period of five years after the allocation. The plaintiff in his statement stated that he realized that the plot he had been allocated was non-existent in 2006. As at the time he realised that the plot was non-existent, he had not paid a single cent as required in the letter of allocation. The offer may have lapsed and the plot given to someone else.
5. The plaintiff did not file a suit for recovery of what he had paid until 16. 11. 2016. Recovery of money based on contract is supposed to be made before expiry of six (6) years from the time of the contract. The plaintiff was given an offer in 2003. He did not accept the offer until after five years later when he started paying. The last payment was made in 2010. The plaintiff’s claim is clearly statute barred. Even if the plaintiff’s claim would not have been statute barred, it would not have succeeded as he did not meet the conditions of the offer. Besides this, the Plaintiff’s evidence was contradictory. Whereas he claimed that the plot was allocated to him, during cross-examination he stated that he purchased the plot from someone-else at Kshs.100,000/=. I proceed to dismiss the plaintiff’s suit with costs to the defendant.
Dated, Signed and delivered at Nairobi on this 25thday of October 2018.
E.O.OBAGA
JUDGE
In the presence of;-
M/s Nyaga for Mr Wanyoike for Plaintiff
Mr Mokua for Mr Mboya for Defendant
Court Assistant: Hilda
E.O.OBAGA
JUDGE