[2005] KEHC 480 (KLR)
The court found that the plaintiff's suit was statute-barred under Section 7 of the Limitation of Actions Act, as the cause of action accrued on 10th June, 1987, and the suit was filed on 30th March, 2000, exceeding the statutory limitation period of 12 years. The court held that the limitation period had lapsed,...
Source-derived case information.
- Citation
- [2005] KEHC 480 (KLR)
- Parties
- Plaintiff: John Mwangi Mathenge (Suing as the personal legal representative of the Estate of Gacharamu Kabutu, Deceased); Defendant: Daniel Ngugi Rao
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 177 of 2000
- Procedural Posture
- Civil Suit / Preliminary Objection Ruling
- Outcome
- plaintiff's suit struck out as statute-barred; costs awarded to defendant
- Legal Topics
- Limitation of Actions, Adverse Possession, Jurisdiction of Court, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mwangi Mathenge (Suing as the personal legal representative of the Estate of Gacharamu Kabutu, Deceased)
Plaintiff
Daniel Ngugi Rao
Defendant
Procedural Posture
Civil Suit / Preliminary Objection Ruling
Legal Issues
- 1 Whether the plaintiff's claim for recovery of land is statute-barred under Section 7 of the Limitation of Actions Act.
- 2 Whether the court has jurisdiction to hear and determine the suit if it is statute-barred.
Ratio Decidendi
The court found that the plaintiff's suit was statute-barred under Section 7 of the Limitation of Actions Act, as the cause of action accrued on 10th June, 1987, and the suit was filed on 30th March, 2000, exceeding the statutory limitation period of 12 years. The court held that the limitation period had lapsed, extinguishing the plaintiff's right to recover the land. Consequently, the court lacked jurisdiction to entertain the suit, and the preliminary objection was upheld. The suit was struck out with costs awarded to the defendant.
Court Disposition
plaintiff's suit struck out as statute-barred; costs awarded to defendant
Orders
- The plaintiff's suit is struck out.
- Costs of the suit are awarded to the defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Suit 177 of 2000
JOHN MWANGI MATHENGE (Suing as the personal legal representative of the Estate of GACHARAMU
KABUTU(DECEASED)……......................................................……….PLAINTIFF
VERSUS
DANIEL NGUGI RAO……………………................................…….DEFENDANT
RULING
On 21st March, 2003 the defendant raised a preliminary objection to the plaintiff’s suit which soought a declaration that the plaintiff was the legal allottee of a parcel of land known as Nyandarua/Sabugo/429 (hereinafter referred to as the “suit premises”) and cancellation of the title deed issued to the defendant in respect of the suit premises and vacant possession of the same.
The preliminary objection was as follows:-
(a) That the plaintiff’s claim against the defendant is statute-barred and therefore should be struck out with costs.
(b) That this honourable court has no jurisdiction to hear and determine this suit.
The plaintiff stated in paragraph 5 of his plaint that the defendant obtained a certificate of outright purchase of the suit premises on 10th June, 1987 and that is when the cause of action accrued. The suit was filed on 30th March, 2000 and that was after a period of 12 years, 9 months and 20 days. The defendant’ counsel, Mr. Kariuki Mwangi submitted that the deceased’s title was extinguished after expiry of 12 years from 10th June, 1987. He therefore submitted that the plaintiff’s claim was statute barred in terms of Section 7 of the Limitation of Actions Act Cap 22 and urged the court to strike out the entire suit.
He sought to rely on the Court of Appeal decision in PETER THUO KAIRU VS KURIA GACHERU [1988]2 KAR 111 where the court found that at the time when the appellant sought to enter the suit land his title as well as that of his predecessor in title had already been extinguished and therefore dismissed the appeal.
Mr. Mwangi further submitted that since the suit was time barred, the court had no jurisdiction to entertain the suit.
Mr. Orina for the respondent said that the suit was not time barred. He said that it had to be demonstrated by evidence that the defendant had been in quiet possession and undisturbed for a period in excess of 12 years. He said that the plaintiff had been making effort to remove the defendant from the suit premises. He said that the preliminary objection was premature and could only be raised after evidence had been taken.
Section 7 of the Limitation of Actions Act is clear that:-
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
I have carefully considered the pleadings filed by both parties as well as the submissions made by both counsel and I am inclined to agree with the defendant’s counsel that the plaintiff’s suit is statute barred, the cause of action having arisen on 10th June, 1987 and the suit having been filed on 30th March, 2000. I therefore strike out the plaintiff’s suit and award costs thereof to the defendant.
DATED, SIGNED AND DELIVERED at Nakuru this 15th day of November, 2005.
D. MUSINGA
JUDGE
15/11/2005
Ruling delivered in open court in the presence of Mr. Rabera holding brief for Mr. Orina for the respondent and N/A for the applicant.
D. MUSINGA
JUDGE
15/11/2005