[2008] KEHC 2968 (KLR)
The court found that although there was evidence of encroachment by the defendant onto the plaintiffs' land parcel No.902, the plaintiffs' claim was time barred under Section 7 of the Limitation of Actions Act. The defendant had been in occupation since 1980, and the plaintiffs only instituted proceedings in 2003,...
Source-derived case information.
- Citation
- [2008] KEHC 2968 (KLR)
- Parties
- Plaintiff: Peter Opudo Nyakundi; Plaintiff: Wilfrida Anyango Nyakundi; Defendant: The Chairman of School Committee of Achol School
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 74 of 2003
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- suit dismissed
- Judges
- DK Musinga
- Legal Topics
- Adverse Possession, Limitation of Actions, Boundary Disputes, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Opudo Nyakundi
Plaintiff
Wilfrida Anyango Nyakundi
Plaintiff
The Chairman of School Committee of Achol School
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant unlawfully encroached on the plaintiffs' land parcel No.902.
- 2 Whether the plaintiffs' claim for recovery of land is time barred under the Limitation of Actions Act.
- 3 Whether the plaintiffs are entitled to rectification of the boundary, eviction, damages, and injunction.
Ratio Decidendi
The court found that although there was evidence of encroachment by the defendant onto the plaintiffs' land parcel No.902, the plaintiffs' claim was time barred under Section 7 of the Limitation of Actions Act. The defendant had been in occupation since 1980, and the plaintiffs only instituted proceedings in 2003, exceeding the statutory twelve-year limitation period for recovery of land. As a result, the court dismissed the plaintiffs' suit, holding that the right to recover the land was extinguished by operation of law due to the lapse of time.
Court Disposition
suit dismissed
Orders
- The plaintiffs' suit is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL SUIT 74 OF 2003
1. PETER OPUDO NYAKUNDI )
2. WILFRIDA ANYANGO NYAKUNDI ) …….........................................................……. PLAINTIFFS
VERSUS
THE CHAIRMAN OF SCHOOLCOMMITTEE OF ACHOL SCHOOL ...……..…...… DEFENDANT
JUDGMENT
By a plaint filed on 12th May, 2003, the plaintiffs alleged that they were the registered proprietors of parcels of land known as KANYAMWA/KOCHIENG’-KOMUNGU KAETA/902 and 904, hereinafter referred to as “the suit properties”. The suit properties were initially owned by the plaintiffs’ late father, Nicholas Nyakundi, who gave ex gratia a portion of the suit properties for construction of a school. The portion that was given away is now registered as KANYAMWA/KOCHIENG – KOMUNGU – KAKAETA/903 in the name of South Nyanza County Council on which Ochol Primary School is erected.
The Plaintiff’ averred that in February 1980 the Committee of the aforesaid school unlawfully extended the school boundary into land parcel No.902 and thereby annexed the said portion to the school. Pursuant to the provisions of Section 21(2) of the Registered Land Act, on 10th February, 2000, the plaintiff made an application to the District Land Registrar to solve the boundary dispute. The District Land Registrar established that there was some merit in the plaintiff’s claim but noted that the claim was time barred as the existing boundaries had been accepted as correct for more than twelve years. Consequently, the District Land Registrar did not order rectification of the boundary.
The plaintiffs prayed for judgment as hereunder:
(a)An order to compel the District Land Registrar,HomaBayto rectify the boundary between landParcel Nos.902 and 903.
(b)An order of eviction of any of defendant’s property
From land parcel No. KANYAMWA/K. K. KAKAETA/902 and an order of injunction to restrain the defendant from ever returning thereon.
(c)General damages for trespass
(d)Costs of this suit.
(e)Interest on (c) and (d) at court rates.
The defendant filed a statement of defence through the Attorney-General’s office and denied the plaintiff’s claim.
The defendant further denied that the land on which the school is erected ever belonged to the late Nicholas Nyakundi as alleged by the plaintiff. It added that the land had been preserved as a public utility land since 1973.
The first plaintiff testified and produced a Title Deed in respect of parcel No.904 as an exhibit. He also produced an index map showing the disputed property. The defendant did not attend court and neither did any representative from the Attorney-General’s office although the hearing date had been fixed by consent.
I have carefully considered the plaintiff’s claim. Much as I agree that the defendant seems to have encroached into the plaintiffs’ parcel of land No.902, it is clear that the plaintiff’s claim is time barred. Section 7 of the Limitation of Actions Act states as follows:
“7. An action may not be brought by any person torecover land after the end of twelve years fromthe date on which the right of action accrued tohim or, if it first accrued to some person throughwhom he claims, to that person.”
In view of the above provisions, the defendant, having been in occupation of the plaintiffs’ parcel of land since 1980 and the plaintiffs having failed to institute recovery proceedings until the year 2003, they are is now time barred. I dismiss the plaintiffs’ suit with no order as to costs.
DATED, SIGNED and DELIVERED at KISII this 14th day of April 2008.
D. MUSINGA
JUDGE.
In the presence of:
Mr. Moracha HB for Mr. Okoth for plaintiffs.
N/A for the Defendants’
D. MUSINGA
JUDGE