[2018] KEELC 1538 (KLR)
The court found that the suit was filed to enforce a judgment and decree that had already been set aside by the Court of Appeal. Since there was no valid decree to enforce, the suit was unsustainable. Additionally, the court noted that the suit was brought 27 years after the original transaction, well outside the...
Source-derived case information.
- Citation
- [2018] KEELC 1538 (KLR)
- Parties
- Plaintiff: Kaana Karume Co. Ltd; Defendant: Samson Karino Ole Nampaso
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 42 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Suit
- Outcome
- suit struck out and dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Limitation of Actions, Striking Out Suit, Enforcement of Decree, Cause of Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaana Karume Co. Ltd
Plaintiff
Samson Karino Ole Nampaso
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit is statute barred under the Limitation of Actions Act.
- 2 Whether the suit discloses a cause of action capable of enforcement.
- 3 Whether the suit should be struck out as frivolous, vexatious, or an abuse of court process.
Ratio Decidendi
The court found that the suit was filed to enforce a judgment and decree that had already been set aside by the Court of Appeal. Since there was no valid decree to enforce, the suit was unsustainable. Additionally, the court noted that the suit was brought 27 years after the original transaction, well outside the statutory limitation period for recovery of land, which is 12 years. The combination of the absence of a valid decree and the expiry of the limitation period rendered the suit both time-barred and devoid of a cause of action. Consequently, the court struck out and dismissed the suit with costs to the applicant.
Court Disposition
suit struck out and dismissed with costs
Orders
- The suit is struck out and dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 42 OF 2017
FORMERLY NAKURU HCC NO. 109 OF 2010
KAANA KARUME CO. LTD...........................PLAINTIFF
-VERSUS-
SAMSON KARINO OLE NAMPASO.........DEFENDANT
RULING
By an Application dated 10th July, 2017 the Applicant sought the suit herein be dismissed and/or struck out. The Application was based on the grounds that the suit does not disclose any cause of action, it is frivolous, vexatious and an abuse of the court process and that the suit offends the mandates provisions of Sections 34 of the Civil Procedure Act.
The Application was supported by the Affidavit of Samson Karino Ole Nampaso who deponed that the Plaintiff herein breached the terms of contract for the sale of a piece of land measuring 150 acres at a consideration of kshs. 20,000/- per acre totaling to kshs. 3,000,000.
That subsequent to the breach, the plaintiff filed suit being Nakuru HCCC No. 195 of 2004 now Narok 273 of 2017 after 21 years since the agreement was drawn. He stated the suit proceeded exparte and judgement entered in the plaintiff’s favour however, an appeal on the same was set aside.
The Applicant further deponed that while the above suit was subsisting the plaintiff filed another suit being Narok Elc No. 42 of 2017 to enforce the judgement and he deponed that a suit brought 27 years after the sell transaction is bad in law and that there is no cause of action.
The Application was opposed by the Respondent by way of a replying affidavit. He deponed that the Application has no merit and that he confirms that the instant suit was filed to execute the decree in Narok HCCC No. 195 of 2004 without filing the instant suit.
I have read the Application, supporting affidavit and the submissions. The issue for determination is whether the suit is status barred pursuant to the provisions of Limitations of Actions Act. The law provides that all suit for recovery of any land must be instituted within a period of 12 years when the cause of action arose.
In the instant case the initial suit between the parties was determined on 28th September, 2007 however, the judgment and the resultant decree were set aside by the court of Appeal in Nakuru Civil Appeal No. 291 of 2010 on 14th July, 2016.
Since the instant suit related to recovery and enforcement of a decree pursuant to the judgement of the 28th September, 2007 and the same having been set aside, I find that the suit is unstable as there is no decree to enforce and in the circumstances I order that the suit be struck out and the same is dismissed with costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 27th day of September, 2018.
Mohammed Noor Kullow
Judge
27/9/18
In the presence of:-
CA:timothy/Kimiriny
Ms Adala holidng brief for Njuguna for the plaintiff/respondent
Mr Morintat for the Defendant/applicant