[2014] KEHC 5538 (KLR)
The court found that the respondent's suit did not disclose a reasonable cause of action because there was no evidence provided to support the claim that the applicant was occupying more land than purchased. The respondent failed to produce any survey findings to substantiate his allegation. Furthermore, the court...
Source-derived case information.
- Citation
- [2014] KEHC 5538 (KLR)
- Parties
- Plaintiff: James Benard Onguko; Defendant: Jonathan Naftali Ngare Alias Joseph Ngare
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3”A” of 2013
- Procedural Posture
- Land Case / Ruling on Notice of Motion to Strike Out Suit
- Outcome
- suit struck out with costs to the applicant
- Legal Topics
- Limitation of Actions, Land Sale Disputes, Title and Registration, Survey and Boundaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Benard Onguko
Plaintiff
Jonathan Naftali Ngare Alias Joseph Ngare
Defendant
Procedural Posture
Land Case / Ruling on Notice of Motion to Strike Out Suit
Legal Issues
- 1 Does the respondent's suit disclose a reasonable cause of action.
- 2 Is the respondent's suit barred by limitation of time.
Ratio Decidendi
The court found that the respondent's suit did not disclose a reasonable cause of action because there was no evidence provided to support the claim that the applicant was occupying more land than purchased. The respondent failed to produce any survey findings to substantiate his allegation. Furthermore, the court held that even if the claim were true, it would be time-barred, as the sale occurred in 1996 and title was issued in 1997, yet the respondent only raised the issue after 17 years. The court emphasized that land measurements are approximate and that a seller cannot revisit the transaction after such a long period to demand a re-survey. Consequently, the suit was struck out for...
Court Disposition
suit struck out with costs to the applicant
Orders
- The respondent's suit is struck out with costs to the applicant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 3”A” OF 2013
JAMES BENARD ONGUKO ......................................... PLAINTIFF
VERSUS
JONATHAN NAFTALI NGARE
Alias JOSEPH NGARE…................................................... DEFENDANT
R U L I N G
The applicant brought a notice of motion dated 21st February, 2014 under the provisions of Order 2 Rule 15 (a) and section 7 of the Limitation of Actions Act.The applicant contends that the respondent's suit does not disclose any reasonable cause of action and that in any case, the respondent's claim is barred by limitation of time.
The respondent had sold the applicant three acres of land which were to be hived off from Trans-Nzoia/Makutano/29. The sale occurred on 24/9/1996. The land was duly subdived and the applicant obtained his title on 24/7/1997. The applicant's portion became LR NO. Trans – Nzoia/Makutano/40 measuring 1. 214 hactares.
The defendant/Respondent moved to court claiming that the applicant is occupying four acres when he bought 3 acres. This is what prompted the applicant to file the present application.
The respondent in his replying affidavit sworn on 31/3/2014 contends that he did a survey of the applicant's land at his own cost and found that the applicant is occupying 4 acres instead of three acres.
On 17/12/2013, the respondent applied for an order that the County Surveyor do visit the disputed land and ascertain its acreage. The District Surveyor did visit the land and made his report dated 25/3/2014. The surveyor could not determine the acreage because he found out that the plot in issue fronts the Kitale Webuye Highway. According to the map held by the County survey office Trans-Nzoia, the road reserve is 60 metres but the current width of the road is only 40 metres.
I have considered the applicant's application as well as the replying affidavit by the respondent. The issues which emerge for determination are firstly, does the respondent's suit disclose a reasonable cause of action and secondly is the respondent's suit time barred?
The respondent contends that the applicant is occupying one acre in excess of what he bought. There is no basis upon which the respondent is making this claim. Though the respondent claims that he surveyed the land in issue and found that it is 4 acres, he did not provide the alleged survey findings. It was expected that the respondent having been faced with an application for striking out his claim, he should have proved that indeed the land is more than three acres. The applicant has title which is 1. 214 hactares which translates to about 3 acres.
The respondent signed the necessary mutation forms which were used to process title. The respondent is not a neighbour of the applicant. The issue therefore is not a boundary dispute. I find that the suit herein does not disclose a reasonable cause of action.
The respondent sold the land in 1996. The applicant obtained title in 1997. The respondent is coming to claim the alleged one acre after 17 years. Even if it were true that the land is more than three acres, his claim is time barred. The court takes judicial notice of the fact that land is expressed to be approximate. It is never exact. The land can either be less or more. A person who has sold his land and gone away cannot wake up one time after a long period and demand for a re-survey. I find that the respondent's suit does not only fail to disclose a reasonable cause of action, it is also caught by limitation if at all there is any excess land above the three acres which the applicant bought. The respondent's suit is hereby struck out with costs to the applicant.
It is so ordered.
Dated, signed and delivered at Kitale on this 5th day of May, 2014.
E. OBAGA,
JUDGE
In the presence of Mr Onyancha for Mr Samba for defendant. Court Clerk – Kassachoon.
E. OBAGA,
JUDGE
5/5/2004