[2007] KEHC 1036 (KLR)
The court found that the plaintiff's claim was statute barred under section 7 of the Limitation of Actions Act, as more than 12 years had elapsed since the defendant became proprietor of the land. The plaintiff failed to provide sufficient details or evidence of fraud that would justify extending the limitation...
Source-derived case information.
- Citation
- [2007] KEHC 1036 (KLR)
- Parties
- Plaintiff: Nicholas Manegene Kimanjui; Defendant: Lazaro Mugo Munyi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4 of 2007
- Procedural Posture
- Civil Case / Ruling on Chamber Summons to Strike Out Suit
- Outcome
- Application allowed; suit struck out as statute barred and lacking cause of action.
- Legal Topics
- Limitation of Actions, Locus Standi, Abuse of Court Process, Adverse Possession
- 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
Nicholas Manegene Kimanjui
Plaintiff
Lazaro Mugo Munyi
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons to Strike Out Suit
Legal Issues
- 1 Whether the suit is statute barred under the Limitation of Actions Act.
- 2 Whether the plaintiff has locus standi to file the suit as administrator of the estate.
- 3 Whether the suit constitutes an abuse of court process.
Ratio Decidendi
The court found that the plaintiff's claim was statute barred under section 7 of the Limitation of Actions Act, as more than 12 years had elapsed since the defendant became proprietor of the land. The plaintiff failed to provide sufficient details or evidence of fraud that would justify extending the limitation period. Additionally, the plaintiff's locus standi as administrator was not sufficient to overcome the statutory bar, and there was no evidence that leave to file the suit out of time had been obtained. The court concluded that the suit lacked a cause of action and constituted an abuse of court process, warranting its dismissal with costs to the applicant.
Court Disposition
Application allowed; suit struck out as statute barred and lacking cause of action.
Orders
- The suit is struck out for being statute barred and lacking a cause of action.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 4 of 2007
NICHOLAS MANEGENE KIMANJUI…………………..…………..PLAINTIFF
VERSUS
LAZARO MUGO MUNYI……………………….…...…………….DEFENDANT
RULING
The Chamber Summons filed in court on 3/4/2007 seeks orders that this suit he struck out for being an abuse of court process, on the grounds that the suit is statute barred and the plaintiff lacks no locus standi to file suit and also that no leave was obtained prior to the filing of this suit. The application is supported by an affidavit of Applicant which shows that the defendant Lazarus Mugo purchased the parcel Mutithi/Chumbiri/332 from late Njirata Kimanjui Ngiri on 29/4/1969 and right of the plaintiff as administrator to recover possession expired after expiration of 12 years. A green card is exhibited showing that the defendant was proprietor on 26/10/72 and on 24/4/99 the title was closed upon subdivision of the title into nos. 813 and 814. The plaintiff has also filed replying affidavit where he says, without giving details that the fraud was discovered in the year 2004 when the defendant filed a Mwea Land Disputes Tribunal case. He has also exhibited a grant issued by court to him in the year 2006, in the estate of deceased, apart from a caution registered in 1978 by Njoro Kinyanjui Njuru claiming the beneficiary interest, there is no other challenge to the Defendant title section 7 of Limitation of Actions Act Cap 22 provides no claim for possession of land shall be filed after the expiration of 12 years.
I find that there is no reason shown by the respondent to warrant an order to sustain the suit which lacks a cause of action. I allow the application and grant orders sought with costs to the Applicant.
Dated this 23rd July, 2007.
J. N. KHAMINWA
JUDGE
23/7/2007
Khaminwa – Judge
Njue –Clerk
Mr. Momanyi HB for Kiama.
J. N. KHAMINWA
JUDGE