[2019] KEELC 3975 (KLR)
The court found that the suit was not time-barred because the land was registered in the name of the Settlement Fund Trustees until 2016, and limitation does not run against the Settlement Fund Trustees. The defendant was registered as proprietor in 2016, and the suit was filed approximately one year later. There...
Source-derived case information.
- Citation
- [2019] KEELC 3975 (KLR)
- Parties
- Plaintiff: Samuel Ngugi Nganga; Defendant: Elena Chepkurgat Kiptalam (suing as the legal administratrix of the estate of Kiptalam Arap Kogo, deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 26 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation of Actions
- Outcome
- preliminary objection dismissed with costs to the plaintiff
- Judges
- FM Njoroge
- Legal Topics
- Limitation of Actions, Adverse Possession, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ngugi Nganga
Plaintiff
Elena Chepkurgat Kiptalam (suing as the legal administratrix of the estate of Kiptalam Arap Kogo, deceased)
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation of Actions
Legal Issues
- 1 Whether the suit for recovery of land is statutorily barred by Section 7 of the Limitation of Actions Act.
- 2 Whether limitation can run against the Settlement Fund Trustees in respect of the suit land.
Ratio Decidendi
The court found that the suit was not time-barred because the land was registered in the name of the Settlement Fund Trustees until 2016, and limitation does not run against the Settlement Fund Trustees. The defendant was registered as proprietor in 2016, and the suit was filed approximately one year later. There was no claim for adverse possession in the plaint, and the statutory limitation period had not elapsed. Therefore, the preliminary objection based on limitation was without merit and was dismissed.
Court Disposition
preliminary objection dismissed with costs to the plaintiff
Orders
- The preliminary objection dated 29th January 2019 is dismissed with costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 26 OF 2017
SAMUEL NGUGI NGANGA................................................PLAINTIFF
VERSUS
ELENA CHEPKURGAT KIPTALAM
(SUING AS THE LEGAL ADMINISTRATRIC OF THE ESTATE OF
KIPTALAM ARAP KOGO (DECEASED)......................DEFENDANT
RULING
1. By way of preliminary objection dated 29/1/2019 the defendant challenged the entire suit herein on the ground that the suit being one for the recovery of land is statutorily barred by provision of Section 7 of the Limitation of the Actions Act. On 30/1/2019 this court ordered the parties to file submissions on that preliminary objection.
2. The defendant filed submissions on 31/1/2019 and in support of the preliminary objection. He reiterates the contents of the preliminary objection and replicates the contents ofSection 7 of the Limitation of the Actions Actand by reference to the pleadings and other documents in court avers that this suit cannot survive and its defects cannot be cured byArticle 159 (2) (d)
3. The plaintiff filed submission in opposition to the defendant’s preliminary objection on 6/2/2019.
4. The defendant cited Nairobi Civil Appeal No. 304/1997where the Court of Appeal found that time period required for adverse possession cannot run as against the Settlement Fund Trustees. He avers that the land subject matter herein became a property of Settlement Fund Trustee which is an arm of the government, in 2006 and the defendant was registered as owner of the suit land in 2016. He avers that the plaintiff has been occupying 2 acres exclusively and with the knowledge of the defendant and her late husband and the Plot No. Maridadi 315 whose register closed on subdivision gave rise to Malidadi/Kosprin/318 and 302. Title no. 381 is a product of subdivision of Title No. 315 which was registered in the name of the defendant in 2016 three years before the institution of the suit.
5. I have examined the plaint and I do not find any claim under adverse possession, which is the subject matter of the preliminary objection at hand.
6. It is the correct position that the land was registered in the name of the Settlement Fund Trustees until the year 2016 when it was registered in the name of Kiptalam arap Kogo. As correctly observed by the plaintiff’s counsel on the basis of the decision in Nairobi Civil Appeal No. 304/1997 Samuel Ndungu Gitu Vs Danson Ndungu and 2 Others,the law on limitation can not run as against the Settlement Fund Trustees.
7. The period between the date of the registration of the deceased as the proprietor of the land and the date of filing of this suit is about one year. Clearly this suit is not time barred.
8. The preliminary objection dated 29th January 2019 is therefore dismissed with costs.
Dated, signedand deliveredatKitale on this 26th day ofMarch, 2019.
MWANGI NJOROGE
JUDGE
26/03/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Lowasikou holding brief for Teti for defendant
N/A for plaintiff
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
26/03/2019