[2019] KEELC 400 (KLR)
The court found that the plaintiff's suit was based on a sale agreement made between 2002 and 2004. Under Section 4(1) of the Limitation of Actions Act, any action founded on contract must be instituted within six years from the date the cause of action accrued. Since the agreements were made between 2002 and 2004,...
Source-derived case information.
- Citation
- [2019] KEELC 400 (KLR)
- Parties
- Plaintiff: Dennis Koikai Naisho; Defendant: Eric Tipis; Defendant: Sarah Tipis; Defendant: Michael Tipis; Defendant: Benard Tipis
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 24 of 2019
- Procedural Posture
- Preliminary Objection / Ruling
- Outcome
- suit dismissed as time-barred; preliminary objection upheld
- Judges
- MN Kullow
- Legal Topics
- Limitation of Actions, Sale of Land Contracts, Preliminary Objection, Stamp Duty Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Koikai Naisho
Plaintiff
Eric Tipis
Defendant
Sarah Tipis
Defendant
Michael Tipis
Defendant
Benard Tipis
Defendant
Procedural Posture
Preliminary Objection / Ruling
Legal Issues
- 1 Whether the plaintiff's suit is barred by limitation under Section 4(1) of the Limitation of Actions Act.
- 2 Whether the sale agreement forming the basis of the suit is inadmissible for lack of stamp duty under Section 19 of the Stamp Duty Act.
Ratio Decidendi
The court found that the plaintiff's suit was based on a sale agreement made between 2002 and 2004. Under Section 4(1) of the Limitation of Actions Act, any action founded on contract must be instituted within six years from the date the cause of action accrued. Since the agreements were made between 2002 and 2004, the limitation period expired by 2010. The suit, having been filed after the lapse of the statutory period, is therefore time-barred. The court upheld the defendants' preliminary objection and dismissed the suit with costs to the defendants.
Court Disposition
suit dismissed as time-barred; preliminary objection upheld
Orders
- The suit is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 24 OF 2019
DENNIS KOIKAI NAISHO.............................................................PLAINTIFF
-VERSUS-
ERIC TIPIS..............................................................................1ST DEFENDANT
SARAH TIPIS.........................................................................2ND DEFENDANT
MICHAEL TIPIS..................................................................3RD DEFENDANT
BENARD TIPIS.....................................................................4TH DEFENDANT
RULING
The Defendants had by a Notice of Preliminary Objection dated 7th February, 2018 contended that the entire suit is misconceived as it is not sustainable since the claim is founded on a purported sale agreement dated 30th March, 2004 which is barred by virtue of the provisions of Section 4 (1) (a) of the Limitation of Actions Act.
The Respondents contended that the sale agreement which is the basis of the suit offends the provisions of Section 19 of the stamp duty act and that the same be expunged from the court record.
The Defendants/Respondents averred that the plaintiff’s claim is borne as outlined in the plaint is based on the sale agreement made on diverse dates which is subject to the provisions of Section 4 of the Law of Contract Act.
I have considered the Preliminary Objection before me and the submissions filed by the Defendants. It is now established what constitutes a Preliminary Objection on points of law as those matters of view which a court determines at the pecuniary stage will ultimately decide the issues between the parties.
In the instant matter the Defendants contend that the Plaintiff’s suit is premised on a sale agreement made on diverse dates between 2002 and 2004. It is trite law that any sale of land must be based on a contract of sale. However, the sale agreement which were purported to have been made falls outside the requisite period within which a contract based on sale can be instituted.
Section 4(1) of Law of Limitations Act provides that no actions may be brought upon the expiry of a period of 6 years. If the sale agreements were made between 2002 and 2004 the time had lapsed by 2010.
In view of the above I find that the Plaintiff’s suit has been caught with time and in the circumstances, I upheld the Preliminary Objection by the Defendants and I dismiss the suit with costs to the Defendants.
DATED, SIGNED and DELIVERED in open court atNAROKon this 11TH day of December, 2019
Mohammed Kullow
Judge
11/12/19
In the presence of: -
CA:Chuma/Kimiriny
Mr Eric Tipis-1st defendant
N/A for the plaintiff
N/A for the interested party
Mohammed Kullow
Judge
11/12/19