[2005] KEHC 707 (KLR)

[2005] KEHC 707 (KLR)

The court found that the plaintiff's claim was for recovery of land, and the right of action accrued in 1958 when the land was subdivided and registered. The plaintiff had deserted the deceased at the time of subdivision and was not present, but was later allocated 6 acres, which she accepted and settled on. There was no evidence that the defendant held any portion of land in trust for the plaintiff. Therefore, the exemption under Section 20(1) of the Limitation of Actions Act did not apply. The claim was thus subject to the 12-year limitation period under Section 7, making the suit time-barred and incompetent. The plaint was rejected on this basis.

Citation
[2005] KEHC 707 (KLR)
Parties
Plaintiff: Waruguru Petero; Defendant: Hezekiah Mathara
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
20 September 2005
Case Number
Civil Case 1132 of 1992
Procedural Posture
Civil Case / Judgment
Outcome
Plaintiff's suit dismissed as time-barred under Section 7 of the Limitation of Actions Act.
Judges
JL Osiemo
Legal Topics
Limitation of Actions, Trusts in Land, Subdivision of Land, Beneficiary Rights
Source Language
English
Land and Property Civil Procedure Limitation of Actions Trusts in Land Subdivision of Land Beneficiary Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Waruguru Petero

Plaintiff

Hezekiah Mathara

Defendant

Procedural Posture

Civil Case / Judgment

Legal Issues

  1. 1 Whether the plaintiff's claim for recovery of land is barred by limitation under Section 7 of the Limitation of Actions Act.
  2. 2 Whether the defendant held the disputed land in trust for the plaintiff, thereby exempting the claim from limitation under Section 20(1) of the Limitation of Actions Act.

Ratio Decidendi

The court found that the plaintiff's claim was for recovery of land, and the right of action accrued in 1958 when the land was subdivided and registered. The plaintiff had deserted the deceased at the time of subdivision and was not present, but was later allocated 6 acres, which she accepted and settled on. There was no evidence that the defendant held any portion of land in trust for the plaintiff. Therefore, the exemption under Section 20(1) of the Limitation of Actions Act did not apply. The claim was thus subject to the 12-year limitation period under Section 7, making the suit time-barred and incompetent. The plaint was rejected on this basis.

Court Disposition

Plaintiff's suit dismissed as time-barred under Section 7 of the Limitation of Actions Act.

Orders

  • The plaintiff's plaint is rejected for being time-barred under Section 7 of the Limitation of Actions Act Cap 27.
  • The defendant is entitled to the costs of this suit.