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ELCDismissedEx-parte Originating Summons dated 24th March 2016· [2017] KEELC 31 (KLR)

In re Estate of Moses Ngugi Kamau (Deceased) [2017] KEELC 31 (KLR)

Environment and Land Court
30 May 2017
MOM.C. Oundo
1,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that extra time to sue under section 27 of the Limitation of Actions Act is only available for personal injury claims, not land disputes.

What this practically means

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Executive summary

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The applicant, Joseph Muturi Ngugi, sued as legal representative of the estate of Moses Ngugi Kamau (deceased), sought leave by ex-parte originating summons dated 24th March 2016 to file an intended suit out of time against Francis Njoroge Muigai (legal representative of the estate of Ayub Rimui Muchina), the Director of Surveys, the Director of Land Adjudication and Settlement and the Attorney General concerning LR No. NYANDARUA/ORAIMUTI/95 and 98. The applicant alleged that Kamau was allocated parcel 98 measuring 52 acres in 1965; that Muchina acquired the adjoining parcel 95 and, in obtaining title in 1987, about 18 acres was hived from parcel 98 and attached to parcel 95 through fraud and collusion with Ministry of Lands employees; and that both parties died before the dispute was resolved, with the legal representative's identity only known in October 2015. The court, noting the cause of action arose in 1987 - thirty years earlier - held that section 27 of the Limitation of Actions Act permits extension of time only for tort actions for negligence, nuisance or breach of duty involving personal injuries, citing Mary Osundwa v Nzoia Sugar Co Ltd, Willis Onditi Odhiambo v Gateway Insurance Co Ltd and Director Ltd v Samani. The claim being a land fraud dispute outside those provisions, the court held it lacked jurisdiction and dismissed the application as statutory barred, with no costs order recorded.

Key legal issues

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Whether the court can extend time under the Limitation of Actions Act for a land fraud claim

Holding

No; sections 27 and 28 do not apply because the cause of action is not based on negligence, nuisance or breach of duty, and the court lacks jurisdiction to entertain the statutory-barred application

Reasoning

The court examined section 27 of the Limitation of Actions Act, which permits extension of time only for tort actions for negligence, nuisance or breach of duty where damages include personal injuries. The applicant's claim arose in 1987 and concerned alleged fraudulent hiving off of about 18 acres from parcel No. 98 to parcel No. 95 - a land fraud dispute, not a personal injuries tort. Reliance was placed on Court of Appeal authorities confirming that section 27 gives no jurisdiction to extend time outside such tort claims.

p. 3

Legal principles established

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  • Extension of time under section 27 of the Limitation of Actions Act applies only to actions founded on tort and in respect of personal injuries arising from negligence, nuisance or breach of duty; it cannot be invoked for land disputes or contract-based claims

Court orders

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  1. 1.The application for leave to file the intended suit out of time is dismissed

Authorities

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Legislation

  • Limitation of Actions Actsection 27
  • Limitation of Actions Actsection 28
  • Limitation of Actions Actsection 4(2)

Cases cited (3)

  • Mary Osundwa vs. Nzoia Sugar Company Limited
    Civil Appeal No. 244 of 2000
  • Willis Onditi Odhiambo v Gateway Insurance Co Ltd
    Civil Appeal No. 37 of 2013 [2014] eKLR
  • Director Ltd vs. Samani
    [1995 – 1998] 1 EA 48
Jurisdiction invoked
Section 27 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, "In re Estate of Moses Ngugi Kamau (Deceased) [2017] KEELC 31 (KLR)", Case Analysis (2017). Ex-parte Originating Summons dated 24th March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/31/eng@2017-05-30

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