[2018] KEELC 2836 (KLR)
The court found that the applicant only became aware of the issuance of title to the 1st defendant on 31st July 2015, despite having used the land for over 40 years. The application for leave was filed promptly thereafter, on 2nd October 2015. The court was satisfied that the requirements of Section 27 of the...
Source-derived case information.
- Citation
- [2018] KEELC 2836 (KLR)
- Parties
- Plaintiff: Joseph Runana Kabui; Defendant: Njihia Kuria; Defendant: The District Land Registrar, Naivasha; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 273 of 2015
- Procedural Posture
- Originating Summons / Ruling on Ex Parte Application for Leave to File Suit Out of Time
- Outcome
- leave granted to file suit out of time
- Judges
- DO Ohungo
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Title Recovery, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Runana Kabui
Plaintiff
Njihia Kuria
Defendant
The District Land Registrar, Naivasha
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Originating Summons / Ruling on Ex Parte Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a suit for recovery of land title after the statutory limitation period of 12 years has lapsed.
- 2 Whether the requirements of Section 27 of the Limitation of Actions Act have been satisfied to warrant extension of time.
Ratio Decidendi
The court found that the applicant only became aware of the issuance of title to the 1st defendant on 31st July 2015, despite having used the land for over 40 years. The application for leave was filed promptly thereafter, on 2nd October 2015. The court was satisfied that the requirements of Section 27 of the Limitation of Actions Act had been met, as the applicant could not have reasonably discovered the cause of action earlier. Consequently, the court exercised its discretion to grant leave to the applicant to file and prosecute a suit for recovery of the land title, notwithstanding the expiry of the 12-year limitation period.
Court Disposition
leave granted to file suit out of time
Orders
- Leave is granted to the plaintiff/applicant to file and prosecute a suit against the named defendants seeking recovery of title to Kijabe/Kijabe Block 1/3085 despite the lapse of 12 years.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 273 OF 2015
JOSEPH RUNANA KABUI........................................................PLAINTIFF
VERSUS
NJIHIA KURIA................................................................1ST DEFENDANT
THE DISTRICT LAND REGISTRAR, NAIVASHA....2ND DEFENDANT
THE HON. ATTORNEY GENERAL.............................3RD DEFENDANT
RULING
1. This ruling is in respect of Originating Summons (OS) dated 2nd October 2015 wherein the following orders are sought:
1. That this honourable court be pleased to grant leave to the plaintiff herein to file, prosecute and maintain a suit against the defendants seeking recovery of title to land parcel known as Kijabe/Kijabe Block 1/3085 despite the period of 12 (twelve) years having elapsed.
2. That the costs hereof be in the cause of the suit to be filed.
2. The Originating Summons is brought ex parte under the provisions of Section 7and27 of the Limitations of Actions Act and Order 37of theCivil Procedure Rules, 2010. It is supported by an affidavit sworn by the applicant. It is deposed in the affidavit that the applicant bought shares in the year 1970 in Maai Mahiu Kijabe Longonot Company Limited pursuant to which upon balloting, he was allocated a parcel of land known as Kijabe/Kijabe Block 1/3085 (the suit property).
3. The applicant was not able to take title immediately due to poor health but has used the land since allocation up to now. When he went to the land registry to process title, he discovered that title to the suit property was issued to the proposed 1st defendant on 17th July 1985. The applicant has used the land for the last 40 years but only became aware that the title had been taken on 22nd October 2014. It was not until 31st July 2015 that he established who exactly obtained title to the suit property.
4. I have considered the application and the supporting affidavit. I note that the present application was filed on 2nd October 2015. It is apparent that the applicant only became aware of the fact that the proposed 1st defendant had obtained title to the suit property on 31st July 2015. In the circumstances, I am persuaded that the requirements of Section 27 of the Limitation of Actions Act have been met.
5. Accordingly, I grant leave to the plaintiff/applicant herein to file and prosecute a suit against the defendants named herein seeking recovery of title to parcel of land known as Kijabe/Kijabe Block 1/3085 despite the period of 12 years having lapsed. Costs in the cause.
Dated, signed and delivered in open court at Nakuru this 29th day of June 2018.
D. O. OHUNGO
JUDGE
In the presence of:
No appearance for plaintiff/applicant.
No appearance for the defendants
Court Assistants: Gichaba & Lotkomoi