[2006] KEHC 1428 (KLR)
The court held that the applicants, as legal representatives of the deceased, only acquired capacity to sue upon the grant of letters of administration on 9th February 2001. The limitation period for recovery of land did not begin to run until they discovered, or could with reasonable diligence have discovered, the...
Source-derived case information.
- Citation
- [2006] KEHC 1428 (KLR)
- Parties
- Applicant: Joseph Eshisila; Applicant: Rebecca Andala Likami; Respondent: Abrahim Keya Kigamu; Respondent: Masiki Makoa Lamogwa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- ? 56 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Recovery of Land, Succession and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Eshisila
Applicant
Rebecca Andala Likami
Applicant
Abrahim Keya Kigamu
Respondent
Masiki Makoa Lamogwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicants are entitled to leave to file suit for recovery of land out of time under the Limitation of Actions Act.
- 2 Whether the limitation period began to run from the date of discovery of the change in registration or from the date of the change itself.
- 3 Whether the applicants had legal capacity to institute the suit prior to obtaining the Grant of Letters of Administration.
Ratio Decidendi
The court held that the applicants, as legal representatives of the deceased, only acquired capacity to sue upon the grant of letters of administration on 9th February 2001. The limitation period for recovery of land did not begin to run until they discovered, or could with reasonable diligence have discovered, the change in registration of the land. Since the applicants could not have instituted the suit before obtaining the grant, and since they acted promptly upon discovering the subdivision and transfer of the land, their cause of action was not time-barred. The court found that the requirements of Order XXXVI Rule 3C(1) had been complied with and granted leave to file suit out of time.
Court Disposition
application allowed
Orders
- Applicants granted leave to file suit against the named respondents within 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Misc Civ Appli 56 of 2005
1. JOSEPH ESHISILA
2. REBECCA ANDALA LIKAMI……............................................………………………. APPLICANTS
V E R S U S
1. ABRAHIM KEYA KIGAMU
2. MASIKI MAKOA LAMOGWA……...............................................…………………. RESPONDENTS
RULING
Section 7 of the Limitation of Actions Act, Cap 22, stipulates that an action to recover land must be brought before the expiry of twelve (12) years from the date on which the right of action accrued. It states:
S.7 “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.”
The exparte application dated 4th August 2005 shows that Rebecca Andala Likami and Joseph Eshisila, a mother and son respectively, are the applicants. Seliphas Likami s/o Masiali was the husband of Rebecca Andala Likami and the father of Joseph Andala Likami. He died in 1973. He left a piece of ancestral land known as Butsotso/Shibeye/684. In 1992, the parcel of land was subdivided into two parcels known as Butsotso/Shibeye/1655 and 1656 which were transferred to Abrahim Keya Kigamu and Masiki Makoa Lomogwa.
The two applicants applied in Kakamega H.C. Succession Cause No.366 of 2000 for a Grant of Letters of Administration Intestate in the estate of the deceased, Selphas Likami s/o Masiali. A Grant was made to them on 09/02/2001. The estate was shown to comprise the parcel of land No. Butsotso/Shibeye/684. On 16/04/2002, this court in the said Succession Cause observed that the parcel of land No. Butsotso/Shibeye/684 had been subdivided as aforesaid and the subdivided parcels were not in the name of the deceased. It is as a result of this revelation that the applicants applied for leave to institute suit out of time against the transferees of the said subdivided parcels.
The provisions of Rule 3C(1) of Order XXXVI of the Civil Procedure Rules require that such application be made exparte by originating Summons supported by an affidavit where the suit is yet to be filed but where the suit has been instituted, such application must be by way of an exparte Chamber Summons made in that suit. Rule 3C(1) (supra) has been complied with.
Where, as here, the period of limitation is prescribed, the period of limitation does not begin to run until the plaintiff has discovered the fraud, or the mistake or could with reasonable diligence have discovered it. In the application herein, the applicants stepped into the shoes of the deceased and became the legal representatives of his estate on 9th February 2001 when the Grant of Letters of Administration Intestate was made to them. No action could accrue to them prior to that date as they had no capacity. But as soon as they obtained the Grant, nay, even from the date they petitioned for it, they could with due diligence have discovered the change in the registration of proprietorship of the said parcel of land. Time started to run, not from the date of change of registration of the proprietorship, but from the date of discovery of this fact.
The applicants’ cause of action does not appear to be time barred. Nevertheless I allow the application and grant the applicants leave to file suit against the named Respondents within 30 days.
Dated, signed and delivered at Kakamega this 29th day of June, 2006.
G. B. M. KARIUKI
J U D G E