[2021] KEELC 3415 (KLR)
The court found that the applicant had provided adequate justification for her failure to file suit within the limitation period, including ignorance of secret succession proceedings and reliance on the respondent's oral promises to transfer the land. The court was satisfied that the interests of justice warranted...
Source-derived case information.
- Citation
- [2021] KEELC 3415 (KLR)
- Parties
- Applicant: Salome H. Junge; Respondent: Mark Kiplagat Kenduiywa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 4 of 2021
- Procedural Posture
- Miscellaneous Application / Ex Parte Originating Summons Ruling
- Outcome
- Application allowed.
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Land Sale Agreements, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome H. Junge
Applicant
Mark Kiplagat Kenduiywa
Respondent
Procedural Posture
Miscellaneous Application / Ex Parte Originating Summons Ruling
Legal Issues
- 1 Whether the applicant should be granted leave to file a suit against the respondent after the limitation period has lapsed.
- 2 Whether the status quo should be maintained to prevent the respondent from interfering with the applicant's possession of the suit land pending the intended suit.
- 3 Whether the applicant has provided sufficient justification for the delay in filing the suit.
Ratio Decidendi
The court found that the applicant had provided adequate justification for her failure to file suit within the limitation period, including ignorance of secret succession proceedings and reliance on the respondent's oral promises to transfer the land. The court was satisfied that the interests of justice warranted granting leave to file the intended suit out of time. Additionally, the court found it appropriate to maintain the status quo to prevent the respondent from interfering with the applicant's possession of the land, given the risk of irreparable loss. The ex parte application was therefore allowed as prayed in the relevant prayers, granting leave to file suit out of time and...
Court Disposition
Application allowed.
Orders
- Status quo to be maintained: the respondent, his servants, agents or anyone acting on his behalf are restrained from evicting the applicant, cutting trees or demolishing structures on Sinyerere/Sitatunga Block 3/Taito/85 pending the intended suit.
- Leave is granted to the applicant, Salome H. Junge, to file a suit against Mark Kiplagat Kenduiywa after the limitation period.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
ELC MISC. APPL. NO. 4 OF 2021
SALOME H. JUNGE.....................................................................................APPLICANT
VERSUS
MARK KIPLAGAT KENDUIYWA..........................................................RESPONDENT
RULING
The Application
1. The ex parte originating summons dated 1/3/2021and filed in court on 3/3/2021,has been bought under Sections 27, 28 and 80of theLimitation of Action Act and Order 51 Rule 1of theCivil Procedure Rules. The applicant seeks the following orders:-
(1) …spent
(2) That pending the grant of the leave and filing of the intended suit, the status quo to be maintained to the effect that the respondent, his servants, agents or anyone whatsoever acting for or on behalf of the respondent from evicting the applicant, cutting any trees or demolishing the applicant on the land parcel known as Sinyerere/Sitatunga Block 3/Taito/85.
(3) That leave be granted to the applicant SALOME H. JUNGE to file a suit against MARK KIPLAGAT KENDUIYWA after an apparent limitation period.
(4) That costs of this application abide the results of the intended suit.
(5) Any other order that the honourable court shall deem fit.
2. The application is supported by the affidavit of the applicant sworn on 1/3/2021. The grounds upon on the face of the application are that: the applicant entered into an agreement for purchase of one acre of land from the respondent from LR No. Sinyerere/Sitatunga/Block 3/Taito/85 which was registered in the name of Noah Barngetuny Kenduiywa; that it was agreed that she takes possession of the land and that she would be included as a beneficiary of the estate of Noah; she was guaranteed quiet possession and enjoyment of the land and she planted 363 trees and commenced construction of a permanent house. However the respondent has started interfering with the suit land by fencing it of and excluding the applicant from any access thereto; he has also ploughed the same. The applicant avers she may loss property worth a colossal sum through the actions of the respondent. The respondent has allegedly applied for confirmation of grant of letters of administration without including the applicant as a beneficiary as agreed. It is intended to file a claim for a permanent injunction and in the alternative compensation from the respondent. It is also averred that the delay in filing the suit was occasioned by ignorance of the applicant regarding the secret filing for confirmation of grant and the misleading frequent oral promises of the respondent that he would transfer the ownership of the land to the applicant. A copy of the land sale agreement executed before an advocate by the parties in this application and dated 13/4/2011 is exhibited. A valuation report dated 27/8/2020 is also exhibited. A valuation report dated 3/9/2020 giving the value of the property at Kshs. 7,000,000/=is also exhibited.
3. This is an ex parte application. The applicant has given justification for why she never filed suit in respect of the suit land.
4. I therefore grant the Ex Parte Originating Summons dated 1/3/2021 as prayed in Prayer Nos. (2), (3)and(4) thereof.
Dated, signedanddeliveredatKitale via electronic mail on this 5thday of May, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.