[2009] KEHC 982 (KLR)
The court found that the cause of action arose on 4/5/1973 when the defendant was registered as owner of the disputed land, including the 6 acres claimed by the plaintiff. The suit was filed on 13/2/1991, approximately 18 years later, well beyond the 12-year limitation period prescribed by section 7 of the...
Source-derived case information.
- Citation
- [2009] KEHC 982 (KLR)
- Parties
- Plaintiff: Nyambarora Kerandi; Defendant: Ndege Amisi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 95 of 1991
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit struck out as statute-barred
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Registration, Title Rectification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyambarora Kerandi
Plaintiff
Ndege Amisi
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's suit for recovery of 6 acres of land is statute-barred under section 7 of the Limitation of Actions Act.
- 2 Whether the plaintiff is entitled to a declaration of ownership, rectification of title, and eviction of the defendant.
Ratio Decidendi
The court found that the cause of action arose on 4/5/1973 when the defendant was registered as owner of the disputed land, including the 6 acres claimed by the plaintiff. The suit was filed on 13/2/1991, approximately 18 years later, well beyond the 12-year limitation period prescribed by section 7 of the Limitation of Actions Act. The plaintiff did not seek or obtain an extension of time to file the suit. Consequently, the court held that the suit was statute-barred and the preliminary objection raised by the defendant was merited. The suit was struck out with costs to the defendant.
Court Disposition
suit struck out as statute-barred
Orders
- The suit is struck out with costs to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
Civil Case 95 of 1991
NYAMBARORA KERANDI……………………….....…………PLAINTIFF
-VERSUS-
NDEGE AMISI …………………………..…………………..DEFENDANT
R U L I N G
There is land parcel no. Kisii/Mokomoni/31 which measures about 18. 50 Hectares and which on 4/5/73 was registered in the name of the defendant. The plaintiff alleges that 6 acres of this land is his and he lives on it, that his ownership of the land was determined by Gesima court in boundary land case no.203 of 1957. Following that determination, he states, the 6 acres were parcelled out-to him and he duly assumed possession and occupation of the same. However, the defendant, during the registration of titles, secretly and illegally caused the 6 acres to be registered along with his into the title above. The plaintiff filed this suit on 13/2/91 claiming that the defendant had recently trespassed upon his land and begun cultivating and grazing cattle therein. The defendant was also refusing the plaintiff the use of the land. The suit was brought for a declaration that 6 acres of the title belonged to the plaintiff. He sought the transfer of title of the 6 acres to him . He wanted the title above to be cancelled and rectified to reflect this position. Then the eviction of the defendant and his payment of mesne profits.
The defendant has denied the allegations contained in the plaint and stated that he was never a party to the Gesima court case. He claimed to have bought 4 acres from the plaintiff about 1963 following which the plaintiff moved out to Nyagacho Scheme where he currently stays. The defendant claimed he has had peaceful occupation of all the land contained in his title since 1963.
The hearing of this case has been adjourned many times. On 17/8/2009 the defendant filed a notice of preliminary objection. His objection to the case was grounded on section 7 of the Limitation of Actions Act (Cap.22), that the suit is time-barred. He wants it struck out with costs. He was represented in the application by Mr. Nyawencha whereas Mr. Rono was acting for the plaintiff.
There is no dispute that the cause of action arose on 4/5/1973 when the defendant allegedly secretly and illegally got himself registered as owner of the land which included the 6 acres the plaintiff claims. The suit was filed on 13/2/1991, which would be about 18 years since the cause of action arose. The law allowed the plaintiff to come to court within 12 years. When the 12 years elapsed he was required to seek extension of time, which he did not do. His suit is statute-barred and the objection taken out by the defendant is therefore merited. The same is struck out with costs.
Dated, signed and delivered at Kisii this 2nd day of November, 2009
A.O.MUCHELULE
JUDGE
2/11/2009
Before Hon. A.O.Muchelule –Judge
Mongare court clerk
Mr. Nyawencha-present
COURT: Ruling read in open court.
A.O.MUCHELULE
JUDGE