[2004] KEHC 1952 (KLR)
The court found that the Plaintiffs had pleaded fraud, trust, and declarations of rights, and that the suit was brought on behalf of a large group of residents in possession of the land. The court held that limitation statutes do not bar suits seeking declarations, especially where the Plaintiffs are already in...
Source-derived case information.
- Citation
- [2004] KEHC 1952 (KLR)
- Parties
- Plaintiff: Willie Kazungu Karisa; Plaintiff: Robert M. Babu; Defendant: Kenya Game Santuaries; Defendant: Eliud Mwagunga; Defendant: The Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 361 of 2002
- Procedural Posture
- Civil Case / Ruling on Chamber Summons to Strike Out Suit
- Outcome
- application dismissed
- Legal Topics
- Limitation of Actions, Declaration of Trust, Striking Out Pleadings, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Willie Kazungu Karisa
Plaintiff
Robert M. Babu
Plaintiff
Kenya Game Santuaries
Defendant
Eliud Mwagunga
Defendant
The Commissioner of Lands
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons to Strike Out Suit
Legal Issues
- 1 Whether the suit against the 1st Defendant should be struck out as scandalous, frivolous, vexatious, or otherwise an abuse of the court process.
- 2 Whether the suit is time-barred under the Limitation of Actions Act and the Public Authorities Limitation Act.
- 3 Whether the Plaintiffs have pleaded sufficient particulars of fraud and trust to sustain the suit.
Ratio Decidendi
The court found that the Plaintiffs had pleaded fraud, trust, and declarations of rights, and that the suit was brought on behalf of a large group of residents in possession of the land. The court held that limitation statutes do not bar suits seeking declarations, especially where the Plaintiffs are already in possession and seek to prevent interference rather than recover possession. The application to strike out the suit was deemed premature, as the issues raised require evidence and determination at a full hearing. The importance of the issues and the nature of the Plaintiffs' claims warranted that the suit proceed to hearing, and costs should not hinder access to justice in such...
Court Disposition
application dismissed
Orders
- Application to strike out the suit against the 1st Defendant is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 361 OF 2002
\WILLIE KAZUNGU KARISA…………………………1ST PLAINTIFF
ROBERT M. BABU……………………………………2ND PLAINTIFF
V E R S U S
KENYA GAME SANTUARIES…………………….1ST DEFENDANT
ELIUD MWAGUNGA………………………………2ND DEFENDANT
THE COMMISSIONER OF LANDS…………...….3RD DEFENDANT
R U L I N G
Chamber Summons filed on 18/2/2002 by 1st Defendant was argued on 4/11/2003. The application is not opposed by 2nd Defendant and 3rd Defendant.
The main prayer is that the suit against the 1st Defendant be dismissed and/or struck out with costs to the 1st Defendant.
The grounds relied upon are written on the body of the application that the suit is scandalous, etc, Order VI rule 13(1)(b) and (d), time barred under Limitation of Actions Act, the Title is impeached under Act 281, the suit cannot possibly succeed, the Plaintiffs will not be able to pay Defendants’ costs.
The application is supported by Affidavit of one Tom Correia Director of the 1st Defendant who swears that the land registered as Voi 12905 was sold to his company by 2nd Defendant on 31/12/1997 and that the Plaintiffs’ right to claim the land expired on 6/11/1994 (after expiration of 12 years from 1982) and that under Public Authorities Act, Section 3 the claim is time barred and that under Section 23 of Cap.281 no fraud has been pleaded in the Plaint.
I have perused the Plaint. There is pleaded fraud, trust use and benefit for the Plaintiffs. The prayers contain declarations of the Plaintiffs’ rights. The suit is filed for the interest of almost 300 persons who have always resided in a village known as Birikani. Any purchaser of the land in which the village is situated must have noticed that the land was in the possession of several persons. The issue is a matter of evidence.
In my view the Limitation of Actions Acts do not prescribe time for declaration suits. The suit does not seek to recover possession of land. These people are already in possession. They pray that their possession be not interfered with, no change of user, a declaration of trust. The issue of whether these people should be deprived of the possession of land they occupy without compensation and where they are to re-settle is a major legal issue to be determined by court.
I find the application is premature and that the suit should proceed to hearing. The issue involved is so important that the costs of suit should not be a hindrance to litigation of this nature.
Application dismissed with cots in the cause.
Dated this 30th day of July, 2004.
JOYCE KHAMINWA
J U D G E
30/7/2004
Mr. Kasmani
Mr. Mwambi
Mr. Okello
Ruling read in presence of the Advocates.
JOYCE KHAMINWA, J.
30/7/04