[2017] KEHC 3184 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL CASE NO. 156 OF 2012

(FORMERLY HCCC 297/93 MERU)

MARY NJERI......................PLAINTIFF/APPLICANT

VERSUS

MOHAMED ALI..........DEFENDANT/RESPONDENT

R U L I N G

1. This is a ruling on a preliminary objection dated 12/04/2017 raised by the defendant/respondent against the hearing of the notice of motion dated 14/11/2016 on the grounds that the execution of the judgment is statutorily barred having not been executed for more than twelve (12) years from it was delivered.

2. The objection was argued by way of written submissions filed by the counsels on record for the parties. Ms. Beth Ndorongo represents the plaintiff while the respondent was represented by Kiratu Kamunya & Company Advocate.

3. The objection is based on Section 4(4), Section 7 and 17 of the Limitations of Actions Act. Section 4(4) provides:-

An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.

4. This section limits the time of execution of judgment to a period of twelve years from the date of delivery where it is for payment or delivery of the property. The judgment in this case was delivered in Meru High Court on 8/03/1994 by Kuloba, J. before this suit was transferred to Embu.

5. Section 17 provides that if the judgment is not enforced with the stipulated period (of twelve years), the rights of the decree holder are extinguished giving the judgment the right to possess the land through adverse possession.

6. Section 7 provides for a statutory bar for recovery fo land including recovery of possession of land after expiry of twelve years.

7. The respondent therefore argues that the applicant cannot come after 23 years to execute the judgment which has already expired. He relies on two authorities to support his arguments:-

(a) M'IKIARA M'IKIARA & ANOTHER VS GILBERT KABEEERE M'MBIJIWE [2007] eKLR

(b) DANSON MURIITHI AYUB VS EVANSON MUROKO [2015] eKLR

8. The applicant opposed the objection on grounds that she has always been in possession of her half portion of the plot as declared in the judgment. The application is only seeking prayers for execution of the partitioning and transfer of the half portion under Section 94(1) of the Land Registration Act, the respondent is only required to consent to co-lessee for partition made to the land registrar. She argues that she has right to property under Article 40 of the Constitution which should be protected. The applicant is not seeking possession or recovery of the land.

9. The respondent relies on Nyeri Court of Appeal Civil Appeal Case No. 32 of 2014 Fredrick Kiura Nyaga Vs Justino Njue where the court declined to uphold a preliminary objection as it stated:-

This was not a proper case for the learned judge to have disposed of by upholding the preliminary objection since there were contested facts which could only be ascertained by a trial.

10. The judge in the Fredrick Kiura casedismissed the land case in where the facts as to limitation of time were contested. The Court of Appeal overturned the judgment of the High Court which had upheld the objection.

11. A glance at the plaint paragraph 3 and 4 shows that the parties in this case were co-proprietors of the plot in issue which was fully developed. The parties were husband and wife at the time of filing the case and had differed on the sharing of income of the plot. The issue of co-ownership was not in dispute. The judgment of the court was to effect that the applicant takes the front part of the plot while the respondent takes the rear part.

12. It is not in dispute that each of the parties took possession of their half shares and have been collecting rent from the tenants for over 23 years. This case must be distinguished from a land case where the plaintiff is seeking for orders that land in the possession and ownership of the defendant is his entitlement.

13. In the event that judgment is given in favour of the plaintiff seeking recovery that the land belongs to him and he fails to take possession or execute judgment within a period of 12 years, the provisions of Section 4(4) of the Limitation of Actions Act will squarely apply.

14. However, in his case the issue of possession does not arise in that each party took possession of his portion as in pursuance with the orders of the court and continue collecting rent from the tenants. The suit was founded on a dispute on rental income in the co-proprietors of the plot which was owned in equal shares. At the time of filing the suit, both parties were still in possession as co-owners but could not agree on issues subsidiary to ownership.

15. It is my considered opinion that Section 4(4) of the Act applies to judgments where the ownership is disputed. The applicant in his notice of motion dated 14//11/2016 is seeking for signing of the documents by the Deputy Registrar for purposes of partitioning of the plot into two equal shares so that she can be bequeathed her half share. I agree with the applicant that Section 94(1) of the Land Registration Act is applicable herein. The respondent is only required to give consent.

16. In view of the foregoing analysis of the facts, I find that the preliminary objection is misplaced and cannot hold. It is hereby dismissed with costs in the cause.

17. It is hereby so ordered.

DELIVERED, DATED AND SIGNED THIS 5TH DAY OF OCTOBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Defendant/Respondent