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ELCStruck OutNot stated in judgment (Environment and Land Court suit, Muran'a/Makuyu)· [2016] KEELC 106 (KLR)

Samuel Ndirangu Njoroge & another – on behalf of Gathaite Farmers Cooperative Society Ltd v Richard Nganga Kamiro [2016] KEELC 106 (KLR)

Environment and Land Court
20 December 2016
1,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a claim to recover school land because it was filed just one month past the twelve-year legal deadline.

What this practically means

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Executive summary

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The plaintiffs, acting in person for Gathaite Farmers Co-operative Society Limited, sued the defendant, an advocate, seeking cancellation and re-transfer of Title No. MAKUYU/MAKUYU/BLOCK 2/1085, an 8.4-acre parcel set aside for a school, which had been transferred to the defendant by the Society's deceased Management Committee members. The defendant filed a Notice of Motion dated 5th November 2015 seeking striking out of the suit as time barred under Section 7 of the Limitation of Actions Act and for offending Order 2 of the Civil Procedure Rules. The court held that although the plaint was defectively drawn, Article 159 and the power to amend precluded striking out on that ground alone. On limitation, the Green Card showed the transfer to the defendant occurred on 26th April 2002, so the twelve-year period under Section 7 ran from that date; the suit filed in May 2014 was out of time by about one month, and no application for extension had been made. The court also found that the fraud exception in Section 26 did not assist because the plaintiffs' own pleadings showed discovery of the fraud in 2001, and no fraud was specifically pleaded against the defendant, applying the requirement that fraudulent conduct be specifically pleaded and particularized. The suit was struck out. Because the plaintiffs were pursuing land given to a school in the public interest, each party was directed to bear their own costs. Ruling delivered on 20th December 2016 by B.N. Olao, Judge.

Key legal issues

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01

Whether the suit is time barred under Section 7 of the Limitation of Actions Act

Holding

Yes; limitation ran from the transfer of the suit land on 26th April 2002 and the suit filed in May 2014 was out of time, albeit by about one month

Reasoning

The Green Card showed transfer to the defendant on 26th April 2002, fixing the date of accrual. Section 7 bars actions to recover land after twelve years. Filing in May 2014 exceeded that period by roughly one month, and no application for leave to file out of time was made, so the suit had to be struck out.

p. 3
02

Whether Section 26 (fraud) saves the suit

Holding

No; discovery of the fraud occurred in 2001 per the plaintiffs' own pleadings

Reasoning

Section 26 postpones limitation until discovery of fraud, but the plaintiffs pleaded that in 2001 they learned of the secret deal transferring the school land. Discovery therefore predates the transfer date itself, and in any event no fraud was pleaded against the defendant. The extension does not assist.

p. 3
03

Whether the defectively drawn plaint should be struck out

Holding

No; the pleading flaw alone does not justify striking out given the power to amend and Article 159

Reasoning

The plaint was a home-made pleading by parties in person offending Order 2 of the Civil Procedure Rules, but the court declined to strike out solely on that ground, invoking the wide power to amend pleadings and the constitutional dictate of substantive justice under Article 159.

p. 2

Legal principles established

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  • An action to recover land may not be brought after twelve years from the date the right of action accrued
  • Fraudulent conduct must be specifically pleaded and particularized

Court orders

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  1. 1.This suit is time barred having been filed outside the time set out in Section 7 of the Limitation of Actions Act Chapter 22 Laws of Kenya; it is therefore struck out
  2. 2.Each party to meet their own costs
Jurisdiction invoked
Original jurisdiction; Article 159 of the Constitution invoked; ruled under Order 2 Civil Procedure Rules and Section 7 of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Ndirangu Njoroge & another – on behalf of Gathaite Farmers Cooperative Society Ltd v Richard Nganga Kamiro [2016] KEELC 106 (KLR)", Case Analysis (2016). Not stated in judgment (Environment and Land Court suit, Muran'a/Makuyu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/106/eng@2016-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.