[2016] KEELC 1176 (KLR)
The court found that the plaintiff's late husband had already commenced the process of claiming the land prior to his death, and that litigation regarding the land had been ongoing, including an appeal that resulted in a consent order. The court held that the plaintiff's current suit is a continuation of the earlier...
Source-derived case information.
- Citation
- [2016] KEELC 1176 (KLR)
- Parties
- Plaintiff: Rael Naliaka Sawenja; Defendant: Jacktone Mukhwana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 91 of 2015
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation of Actions
- Outcome
- preliminary objection dismissed
- Judges
- EO Obaga
- Legal Topics
- Limitation of Actions, Recovery of Land, Declaratory Relief
- 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
Rael Naliaka Sawenja
Plaintiff
Jacktone Mukhwana
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation of Actions
Legal Issues
- 1 Whether the suit is statute barred under section 7 of the Limitation of Actions Act.
- 2 Whether the plaintiff's claim for declaration of ownership is time-barred.
Ratio Decidendi
The court found that the plaintiff's late husband had already commenced the process of claiming the land prior to his death, and that litigation regarding the land had been ongoing, including an appeal that resulted in a consent order. The court held that the plaintiff's current suit is a continuation of the earlier process and not a new cause of action arising in 2015. Therefore, the suit is not statute barred under section 7 of the Limitation of Actions Act. The preliminary objection was dismissed with costs to the plaintiff.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
CASE NO. 91 OF 2015
RAEL NALIAKA SAWENJA...................PLAINTIFF
VERSUS
JACKTONE MUKHWANA..................DEFENDANT
RULING
This is a ruling in respect of a preliminary objection raised by the defendant on the ground that this suit is statute barred on account of section 7 of the Limitation of Actions Act. The plaintiffs advocates were duly with the Preliminary objection which was set down for hearing on 13. 10. 2015 but they did not attend.
The defendant contends that the cause of action herein accrued to the plaintiff's late husband William Sawenja Silikwa in 1986 but that there was no suit filed until 28. 6.2015. The defendant contends that the suit should have been filed by 1998. The defendant therefore argues that the suit is statute barred.
I have gone through the pleadings filed herein in a bid to determine whether this suit is statute barred. I notice from the record that the plaintiff's husband died on 4. 11. 2002. Prior to the death of the deceased he had been involved in litigation with some members of Birunda Farm Limited. It would appear the matter had gone before a panel of elders who ruled in favour of the members of Birunda Farm Ltd. The deceased then appealed against the elders decision which had been adopted as a judgement of the court.
On 8. 6.1989 the counsel for the appellant (deceased) and the respondents entered a consent allowing the appeal on the ground that the lower court had no jurisdiction. ?Section 7 of the Limitation of Actions Act states as follows:-
“ 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”.
In the instant case the cause of action accrued to the plaintiff's husband before he died. The plaintiff's husband had started the process of claiming his land. When he was defeated in his attempt to claim his land, he went to the court of Appeal where a consent was recorded allowing the appeal. This meant that the position obtaining before the decision of the lower court was maintained. What remained was the process of execution i.e to remove those who had taken away his land. The only issue for determination is whether in the circumstances it can be said that the plaintiff's claim is statute barred.
It is clear from the pleadings that the deceased had started the process of claiming his land. It cannot therefore be claimed that the process started in 2015. The plaintiff has merely come to court for declaration that she is the lawful owner of the suitland. There is therefore no ground for alleging that the suit is barred by statute. I therefore dismiss the Preliminary Objection with costs to the plaintiff.
It is so ordered.
Dated, signed and delivered at Kitale on this 26th day of January, 2016.
E. OBAGA
JUDGE
In the presence of Mr. Ndarwa for applicant
Assistant - Isabellah.
E. OBAGA
JUDGE
26/1/2016