[2017] KEHC 2167 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

ELC NO. 192 OF 2016

LUCIA NJERI KABERU……………………………..PLAINTIFF

VERUS

JOSPHINE WANJIRU MWANGI……..…........….1ST DEFENDANT

PETER J. KIRAGU MWANGI………….........……2ND DEFENDANT

THE HON. ATTORNEY GENERAL(Sued on behalf of the

NAIVASHA LAND REGISTRAR)………………………3RD DEFENDANT

RULING

(Application to strike out suit as being time barred; 12 years limitation period for a claim to recover land; suit filed in the year 2016; suit properties having become registered in name of defendant's estate in the years 1987 and 1990; plaintiff aware of dispute as at 1992 or latest 1996; case struck out as being time barred)

1. The application before me is that dated 11 April 2017 filed by the 1st and 2nd defendants. The application has been brought pursuant inter alia to the provisions of Section 7 of the Limitation of Actions Act, Cap 22, Laws of Kenya, and seeks the following orders :-

(i) That the respondent's suit herein be struck out for being statute time barred.

(ii) That costs of this application and the entire suit be met by the respondent.

2. No response was filed by the plaintiff to oppose this motion. It will be observed that the applicants claim that the plaintiff's suit is time barred and needs to be struck out. In order to determine whether or not the plaintiff’s suit is time barred, it is necessary that I assess the plaintiff's case as pleaded in the plaint.

3. The plaint itself was filed on 3 June 2016. It is pleaded in the plaint that at all material times, the plaintiff was the legal and beneficial proprietor of the land parcel Naivasha/Mwichiringiri Block 4/2803 and Naivasha/Mwichiringiri Block 4/2804 (hereinafter referred to as "the suit properties") which she claimed to have purchased from Mirera Suswa Farmers Limited. She averred that she has been a full time member of the said company since the year 1974 and that she successfully balloted for the suit properties, paid the requisite fees, and took possession at the end of the year 1980. She pleaded that she built two roomed houses on the suit properties, fenced the same and commenced farming activities. She pleaded that she was included in the initial register and was issued with receipts and ballot papers and that circumstances related to the records of Mirera Suswa office were advertised in Kenya Gazette No. 4111/31/12 after loss. She has pleaded that she was shocked when a new register was generated by the officials of Mirera Suswa Farmers Limited which tampered with the plaintiff's plots and purported to illegally allocate the same to Philip Gitonga Mwangi (deceased) who became the registered owner. The 1st and 2nd defendants are the administrators of the estate of the said deceased. It is thus the case of the plaintiff that the deceased obtained registration by fraud. In the suit, the plaintiff wishes to have the title deeds issued to the deceased cancelled and the plaintiff be issued with title to the suit properties.

4. The applicants filed a joint defence vide which they refuted all the claims of the plaintiff. They averred that the titles to the suit properties were issued to the deceased in the years 1987 and 1990 respectively and therefore the plaintiff's suit is statute time barred. They issued a notice of preliminary objection to that effect which was followed up by the filing of this application.

5. The application is based on the following grounds :-

(a) That title number Naivasha/Mwichiringiri Block 4/2803 was registered in the name of Philip Gitonga Mwangi on 15 September 1987 and a title deed issued on 16 January 1990.

(b) That the title number Naivasha/Mwichiringiri Block 4/2803 (sic) (probably meant parcel No. 2804) was registered in the name of Philip Gitonga Mwangi on 15 September 1987 and a title deed issued on 6 October 1987.

(c) That the respondent was aware of the said registration in the year 1992.

6. The supporting affidavit to the application is sworn by Peter J. Kiragu Mwangi, the 2nd defendant/applicant. He has annexed the title deeds to the two suit properties and has deposed that the two properties were distributed to some beneficiaries in the course of the succession proceedings in respect of the estate of the deceased registered owner. He has pointed out that the properties were registered in the name of the deceased in the years 1987 and 1990 and has averred that the respondent was aware of the said registration about the year 1992. He has deposed that the case herein has been brought after a duration of more than 12 years since the deceased became registered as proprietor.

7. In his submissions, Mr. Mutonyi pointed me to the respondent's own witness statement filed together with the plaint as evidencing that the respondent was aware of the registration of the deceased in the year 1992 and a letter dated 16 April 1996 which was annexed by the respondent in her list of documents filed with the plaint.

8. As I have mentioned earlier, the respondent did not file anything to oppose the motion and the facts as set out by the applicants are therefore uncontroverted. I have given due consideration to the application.

9. The limitation period for filing a suit in respect of land is 12 years as stipulated in Section 7 of the Limitation of Actions Act, which is drawn as follows :-

7. Actions to recover land

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.

10. It is apparent to me that the cause of action to recover the land commenced when the deceased became registered as proprietor of the suit properties which were the years 1987 and 1990. The plaintiff had 12 years from this time to commence her action. She could however have benefited from the provisions of Section 26 which extends the period of limitation in cases of fraud or mistake. The said provision is drawn as follows:-

26. Extension of limitation period in case of fraud or mistake

Where, in the case of an action for which a period of limitation is prescribed, either—

(a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or

(b) the right of action is concealed by the fraud of any such person as aforesaid; or

(c) the action is for relief from the consequences of a mistake,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:

Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or

(ii) in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.

11. It will be discerned that where the cause of action is based on fraud, time starts to run on discovery of the fraud or when with due diligence, such fraud would have been discovered.

12. The case of the plaintiff is certainly based on fraud. The question that arises is whether she may benefit from an extension of time, given the provisions of Section 26 above, and she indeed stands to benefit if she did not discover the alleged fraud within 12 years of the registration of the deceased as proprietor or she could not with reasonable diligence discover the alleged fraud. In our case, I am afraid that the plaintiff cannot benefit. In her own witness statement, the plaintiff has stated that she resided on the suit premises until the year 1992 when she moved out due to tribal clashes. She has stated that it is during this period that another member's register was prepared. I have also seen the letter dated 16 April 1996 said to be written by a former manager of the Land Company to the Chief of Hell's Gate Location and which seems to suggest that the plaintiff owns the plot numbers 2803 and 2804. Clearly, by then, the plaintiff must have been chasing title to the said plots or else such letter would not have been written. The plaintiff has not filed any replying affidavit to refute the claim that she was aware of the dispute as far back as the year 1992, or at least, latest, the year 1996. If she wished to benefit from the provisions of Section 26, she needed to state clearly when she became aware of the dispute.

13. From the above, it is my holding that the plaintiff was aware of the dispute as far back as the year 1992, or latest, the year 1996. She therefore needed to file her case, the year 2004 or the year 2008 at the latest. This case was filed in the year 2016 way beyond the limitation period.

14. I therefore have no option but to strike out this suit with costs to the applicants. For the avoidance of doubt, any interim orders in favour of the plaintiff are hereby vacated.

15. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 5th day of October, 2017.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In presence of :

Ms. Oseko holding brief for Mr. Mutonyi for the 1st and 2nd defendants/applicants

Mr. Makori holding brief for Mr. George Kimani for the plaintiff.

Court Assistant: Toroitich Carlton

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU