[2004] KEHC 510 (KLR)
The court held that the Plaintiff's claim, seeking a declaration that the sale of the land was null and void, is not a claim for land within the meaning of Section 7 of the Law of Limitations Act and therefore is not subject to the statutory limitation period. Furthermore, the court found that the issue of whether...
Source-derived case information.
- Citation
- [2004] KEHC 510 (KLR)
- Parties
- Plaintiff: Henry Njeru; Defendant: Agricultural Finance Co-op
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 31 of 2003
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Limitation Periods, Declaratory Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Njeru
Plaintiff
Agricultural Finance Co-op
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is statute-barred under Section 7 of the Law of Limitations Act due to lapse of 24 years since the sale of the land.
- 2 Whether the suit is barred by res judicata or procedural rules due to a previous suit (HCCC 2993/1979) between the parties.
Ratio Decidendi
The court held that the Plaintiff's claim, seeking a declaration that the sale of the land was null and void, is not a claim for land within the meaning of Section 7 of the Law of Limitations Act and therefore is not subject to the statutory limitation period. Furthermore, the court found that the issue of whether the previous suit was dismissed for want of prosecution or non-attendance is a disputed fact, not a pure point of law, and thus cannot be determined by way of preliminary objection. As a result, both grounds of the preliminary objection failed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is disallowed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU HCCC 31 OF 2003
HENRY NJERU ………………………………PLAINTIFF
VERSUS
AGRICULTURAL FINANCE CO-OP………..DEFENDANT
RULING ON A PRELIMINARY OBJECTION
1. The Preliminary Objection herein has been raised by Counsel for the Defendant. His argument is that at paragraph 4 of the Plaint it is averred that the parties’ relationship commenced on 5. 10. 1977 when the Defendant advanced Ksh.10,000/= to the Plaintiff and the title for land parcel No. Gaturi/Nembure/1934 given as security. Further at paragraph 6 thereof, that the land was sold in a Public Auction upon default of repayment by the Plaintiff. It is agreed that sale was effected on 16. 8.1979. Counsel argues that since the claim in the Plaint is for nullification of that sale, and 24 years have since lapsed, then the suit is statute time-barred under Section 7 of the Law of Limitations Act.
2. A second point raised but whose basis was initially unclear but clarified in the reply was that at paragraph 9 of the Plaint, mention is made of a suit, HCCC 2993/1979 (Nairobi) between the parties which was dismissed. I am told that under Section 8 of the Civil Procedure Act as read with Order 16 and Order 9 B Rule 7 of the Civil Procedure Rules, this suit is not sustainable and should be struck out. Paragraph I shall dispose of the second Objection fairly quickly. It is unclear whether HCCC 2993/1979 (Nairobi) was dismissed for want of prosecution as pleaded in paragraph 9 of the Plaint or for non-attendance as submitted by Counsel for the Defendant. The issue is no longer one of law but of fact. Where facts are disputed, a Preliminary Objection must fail and so this one does. (See Mukisa Biscuits Manufacturing Co. Ltd is West End Distributions Ltd [1969] E.A 696.
3. Turning to the question of limitation of time, I am in agreement with Counsel for the Plaintiff that the prayer for a declaration that the sale of all that parcel of land, Title No. Gaturi/Nembure/1934 on 16th August 1979 was null and void ab initio is per se not a claim for land strictly. It is simply a declaration and when sought in a judgment, the end result is a declaratory judgment. This has been defined to mean a judgment of the court the purpose of which “is to establish the rights of the parties and express the opinion of the court on a question of law without ordering anything to be done. The distinctive characteristic of a declaratory judgment is that it stands by itself, and no executory process follows as a matter of course.” (Law Dictionary, Bamon’s Legal Guides by Steven H. Gifis, 1994.
4. I have not been told by Counsel for the Defendant that declarations in the manner defined above, have a statutory time limit; Land claims are indeed limited by Section 7 of the Act as submitted but the claim in this suit is not a claim for land
. 5. The Objection must fail and I hereby disallow it with costs to the Plaintiff.
Orders accordingly.
Dated and delivered in open court on this 16th day of December 2004.
I.LENAOLA
JUDGE
Presence of ;-
Mr. Momanyi for Wayang’o for Defendant
N/A for Plaintiff.
I.LENAOLA
JUDGE