[2016] KEELC 1214 (KLR)
The court found that while the claim for rectification of the register may be subject to limitation under the Limitation of Actions Act, the inclusion of a prayer for a permanent injunction means that the suit as a whole cannot be considered time barred, as there is no statutory limitation period for injunctions....
Source-derived case information.
- Citation
- [2016] KEELC 1214 (KLR)
- Parties
- Plaintiff: Joseph Sombo Said; Defendant: Margaret Wanjeri Ndungu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 254 of 2013
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; suit transferred to Kwale Principal Magistrate’s Court
- Judges
- AA Omollo
- Legal Topics
- Limitation of Actions, Rectification of Land Register, Permanent Injunction, Preliminary Objection
- 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
Joseph Sombo Said
Plaintiff
Margaret Wanjeri Ndungu
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's suit is time barred under the Limitation of Actions Act.
- 2 Whether the inclusion of a prayer for injunction affects the limitation period applicable to the suit.
- 3 Whether the preliminary objection raised by the defendant has merit.
Ratio Decidendi
The court found that while the claim for rectification of the register may be subject to limitation under the Limitation of Actions Act, the inclusion of a prayer for a permanent injunction means that the suit as a whole cannot be considered time barred, as there is no statutory limitation period for injunctions. Furthermore, since the defendant also made a counter-claim for an injunction, the matter must proceed to full hearing. The court emphasized that striking out a suit is only appropriate in the clearest of cases, which was not the situation here. Accordingly, the preliminary objection was dismissed.
Court Disposition
preliminary objection dismissed; suit transferred to Kwale Principal Magistrate’s Court
Orders
- The preliminary objection is dismissed with no order as to costs.
- The suit is transferred to Kwale Principal Magistrate’s Court for hearing and determination.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
ENVIRONMENT AND LAND COURT
ELC CIVIL SUIT NO. 254 OF 2013
JOSEPH SOMBO SAID..........................................................PLAINTIFF
-VERSUS-
MARGARET WANJERI NDUNGU.............................................DEFENDANT
RULING
The plaintiff sued the defendant seeking two prayers one of which is an order directing the land registrar Kwale to correct the anormaly and revert the stolen acreage to the plaintiff. The second prayer was for injunction to be issued against the defendant to restrain him from interferring with the plaintiff's parcel of land Kwale/Mwanguda/1128.
The defendant filed her defence to the suit and a counter – claim seeking a permanent injunction to issue against the plaintiff restraining him from interfering with her plot No Kwale/Mwanguda/1140. Thereafter on 23rd March 2015 the defendant filed a notice of preliminary objection on the ground that the suit is time barred.
The defendant filed written submissions to argue the objection. The plaintiff did not file any. The defendant submits that the cause of action arose on the 11th June 1997. It is her argument that the suit ought to have been filed before the lapse of 12 years which was on 11th June 2007. She relied on the provisions of section 7 and 9 of the limitation of Actions Act.
An reading of the plaintiff's pleadings reveals two claims. First is a prayer for rectification of the register as he is accusing the defendant of engaging in fraud. The second prayer is for a permanent injunction from interferring with his plot. If there was no prayer for injunction then I would have considered whether the suit is time barred. Once the prayer for injunction is introduced then the entire suit cannot be argued to be time barred as there is no time barrier set for making such a claim.
In any event, the defendant also made a prayer in the counter – claim. Therefore the suit will have to proceed to a full hearing. The principle of striking out suits is that a suit should only be struck out in the clearest of cases. The instant suit does not meet such criteria as I can only strike out a part of the prayers if found to be time barred and proceed to hear part of the suit on injunction.
Consequently I find no merit in the preliminary objection raised and hereby dismiss it with no costs as the plaintiff did not present any arguments to oppose the objection.
In light of the new amendments to the Magistrate's Court Act, specifically section 7 (3) which became operational on 2. 1.2016 this Court own its motion hereby immediately transfer this matter to Kwale Principal Magistrate’s Court for hearing and determination.
Ruling Dated and Delivered in Mombasa this 12th day of February 2016
A. OMOLLO
JUDGE