[2003] KEHC 952 (KLR)

[2003] KEHC 952 (KLR)

The court found that the suit and application were time-barred under section 136 of the Government Lands Act, which requires actions to be brought within one year of the cause of action and for a one-month notice to be served on the defendant before commencement. The plaintiff's arguments that the Limitation of Actions Act applied, or that time ran from discovery of fraud, were rejected. The court held that the cause of action arose at the latest by 17th May 2000, when the plaintiff knew of the sale, and that the suit, filed in December 2001, was out of time. There was no evidence that the mandatory notice was served. Consequently, the court lacked jurisdiction to hear the suit, and all...

Citation
[2003] KEHC 952 (KLR)
Parties
Plaintiff: Regina Wahu Muigai; Defendant: Housing Finance Company (K) Ltd; Defendant: LM Gakuu T/A Alfa Auctioneers; Defendant: Baliga Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
3 October 2003
Case Number
Civil Suit 1882 of 2001
Procedural Posture
Civil Suit / Judgment on Preliminary Objection
Outcome
suit and application dismissed with costs
Legal Topics
Statutory Power of Sale, Limitation Periods, Government Lands Act, Mortgage Disputes, Injunctive Relief
Source Language
English
Land and Property Civil Procedure Statutory Power of Sale Limitation Periods Government Lands Act Mortgage Disputes Injunctive Relief

Case Brief

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Parties

Regina Wahu Muigai

Plaintiff

Housing Finance Company (K) Ltd

Defendant

LM Gakuu T/A Alfa Auctioneers

Defendant

Baliga Ltd

Defendant

Procedural Posture

Civil Suit / Judgment on Preliminary Objection

Legal Issues

  1. 1 Whether the suit and application are time-barred under section 136 of the Government Lands Act.
  2. 2 Whether the plaintiff complied with the mandatory notice requirement under section 136 of the Government Lands Act.
  3. 3 Whether the court has jurisdiction to hear the suit given the statutory requirements.

Ratio Decidendi

The court found that the suit and application were time-barred under section 136 of the Government Lands Act, which requires actions to be brought within one year of the cause of action and for a one-month notice to be served on the defendant before commencement. The plaintiff's arguments that the Limitation of Actions Act applied, or that time ran from discovery of fraud, were rejected. The court held that the cause of action arose at the latest by 17th May 2000, when the plaintiff knew of the sale, and that the suit, filed in December 2001, was out of time. There was no evidence that the mandatory notice was served. Consequently, the court lacked jurisdiction to hear the suit, and all...

Court Disposition

suit and application dismissed with costs

Orders

  • The application dated 11th December 2001 and the suit dated 11th December 2001 and amended on 12th June 2002 are dismissed with costs.