[2017] KEELC 72 (KLR)
The court found that the applicant had established a prima facie case for the grant of leave to file suit out of time, particularly as the claim was based on alleged fraud discovered in 1995 and the applicant had occupied the land openly for a significant period. The court exercised its discretion to allow the...
Source-derived case information.
- Citation
- [2017] KEELC 72 (KLR)
- Parties
- Applicant: Geoffrey M’Ndiera M’Rukaria; Respondent: M’Turuchiu M’Mithiga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Originating Summons for Leave to File Suit Out of Time
- Outcome
- leave to file suit out of time granted, subject to conditions
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Fraudulent Land Registration, Rectification of Land Register
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey M’Ndiera M’Rukaria
Applicant
M’Turuchiu M’Mithiga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Originating Summons 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 cancellation and rectification of land title due to alleged fraud.
- 2 Whether the delay in filing the suit is sufficiently explained to warrant exercise of the court's discretion.
- 3 Whether the issue of limitation should be determined at the preliminary stage or in the main suit.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of leave to file suit out of time, particularly as the claim was based on alleged fraud discovered in 1995 and the applicant had occupied the land openly for a significant period. The court exercised its discretion to allow the applicant to file the suit, holding that the issue of limitation should be determined in the main suit rather than at the preliminary stage. The court further ordered that the suit be filed within 14 days, failing which the application would stand dismissed. The orders were made to ensure that the substantive issues regarding the alleged fraudulent registration and rectification of...
Court Disposition
leave to file suit out of time granted, subject to conditions
Orders
- The applicant is allowed to file the suit but the issue of limitation will be determined in the main suit.
- The suit to be filed within 14 days from the date of delivery of this ruling, otherwise the application stands as dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
MISC. APPLICATION NO. 6 OF 2017
IN THE MATTER OF APPLICATION OF LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA
AND
IN THE MATTER OF APPLICATION BY GEOFFREY M’NDIERA M’RUKARIA FOR LEAVE TO FILE SUIT OUT OF TIME
GEOFFREY M’NDIERA M’RUKARIA..............................................APPLICANT
VERSUS
M’TURUCHIU M’MITHIGA...........................................................RESPONDENT
R U L I N G
1. The Exparte Originating Summons dated 27th February,2017 seeks the following orders:-
1)That the applicant be granted leave by this Honourable Court to file suit out of time against the Respondents seeking an order of cancellation of land Title No. NTIMA/IGOKI/221 and rectification of the register thereon and costs.
2)That costs of this application be cost in the intended suit.
2. The Application is based on the grounds that:-
a) The claim is based on FRAUD discovered in 1995 and customary claim and the land was gathered in my name and I occupied the same for 38 years openly without any secrecy but as of right. That High Court (O.S) No. 180 of 1995 has since abated.
b)That when I bought the green card I discovered that the suit parcel of land was registered in the name of somebody who never existed.
c)The matter involves sensitive land issues and its only fair that the application be granted leave t enable me ventilate the issue on merit.
d)The delay is explainable.
3. Applicant has sworn an affidavit filed on 27. 02. 17 stating that the persons registered in respect of the suit land do not exist.
4. I proceed to give the following orders.
1) The Applicant is allowed to file the suit but the issue of limitation will be determined in the main suit.
2) The suit to be filed within 14 days from the date of delivery of this ruling, otherwise the application stands as dismissed.
3) The order herein to be extracted and to form part of the record in the intended suit.
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 11th DAY OF OCTOBER, 2017 IN THE PRESENCE OF:
CA: Janet
Applicant present
Respondent present
Hon. L.N. MBUGUA
ELC JUDGE