[2006] KEHC 1844 (KLR)
The court upheld the preliminary objection on three grounds: first, the suit was improperly instituted by plaint instead of originating summons as required for trust matters; second, the claim was time-barred as the agreement was entered into over 20 years before the suit was filed; and third, the agreement for...
Source-derived case information.
- Citation
- [2006] KEHC 1844 (KLR)
- Parties
- Plaintiff: Zacharia Mugenyu Kaburu; Defendant: Joseph Mugenyu Kaburu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 524 of 2004
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit struck out with costs to the defendant
- Judges
- JL Osiemo
- Legal Topics
- Trusts in Land, Land Control Board Consent, Limitation of Actions, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zacharia Mugenyu Kaburu
Plaintiff
Joseph Mugenyu Kaburu
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit was properly instituted by plaint instead of originating summons where a trust is alleged.
- 2 Whether the suit is time-barred under the Limitation of Actions Act.
- 3 Whether the agreement for transfer of agricultural land is void for want of Land Control Board consent.
Ratio Decidendi
The court upheld the preliminary objection on three grounds: first, the suit was improperly instituted by plaint instead of originating summons as required for trust matters; second, the claim was time-barred as the agreement was entered into over 20 years before the suit was filed; and third, the agreement for transfer of agricultural land was void for lack of Land Control Board consent as required by Section 7 of the Land Control Act. As a result, the plaintiff's suit was struck out with costs to the defendant.
Court Disposition
suit struck out with costs to the defendant
Orders
- The plaintiff's suit is struck out.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 524 of 2004
ZACHARIA MUGENYU KABURU…………………..…………………PLAINTIFF
VERSUS
JOSEPH MUGENYU KABURU……………………………………DEFENDANT
RULING
The plaintiff brought this suit against the defendant seeking judgment for:-
(a) A declaration that all that parcel of land known as LR NO. 26/MUGAGA/KAHUHO registered in the name of the Defendant was so registered in trust for the benefit of the defendant and the plaintiff.
(b) An order that the suit land be subdivided equally between the plaintiff and the defendant.
(c) An order of injunction restraining the defendant from dealing, alienating and transferring or in any other way interfering with the suit land pending the hearing and final determination of this suit.
(d) Mesne profits for the loss of use of the suit land to be assessed by the court.
(e) Costs and interest of the suit.
The defendant filed a defence denying the claim.
But before the suit was heard the defendant raised a Preliminary Objection on a point of law. The same is raised at Paragraph 3 of the Defence:
1. That the defendant herein being sued in the Capacity of a trustee, the plaintiff should have as such commenced this suit with an originating summons under Order XXXVI Rule 1 of the Civil Procedure Rules and not by way of a suit.
2. The second limb of his cause of action is based on an Agreement dated 12th November 1983. This is contained in paragraph 7 of the plaint. This suit having been filed on 24th May 2004, which is over cause of action arose, the same is time barred.
3. This Agreement was over a transfer of Agriculture Land which is subject to Land Control Board Consent and the same was not secured within 6 months after the Agreement was entered into. This violated the provisions of Section 7 of the Land Control Act Cap 302. The said agreement was therefore void for lack of Land Control Board Consent.
For the above reason counsel for the Defendant urged the court to strike out the suit with costs.
The plaintiff conceded that the Agreement between him and the defendant was entered into on 12th November 1983 which is over 20 years before this suit was filed. He also admitted that the agreement involves a transaction over agricultural land and he had not secured a Land Control Board Consent as required under Section 7 of the Act.
For the above reasons, the Preliminary Objection is upheld and the plaintiff’s suit is struck out with costs to the defendants.
Dated and delivered at Nairobi this 27th day of June 2006.
J.L.A. OSIEMO
JUDGE