Alex Sande Wafula (Suing as the Legal representative of the estate of the late Wafula Mulunda John (Deceased) v Jairus Wakhungu Mulunda [2017] KEELC 303 (KLR)
The bottom line
#The High Court in Bungoma dismissed a family land trust claim filed nearly three decades late, ruling that Kenya's six-year time limit applies unless fraud is specifically pleaded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff's suit is barred by limitation under Section 20 of the Limitation of Actions Act (Cap 22)
- 2.Whether the plaintiff's claim falls within Section 20(1)(a) or (b) so that time does not run
- 3.Whether Article 159 of the Constitution can override the limitation requirement
Key legal issues
#Whether the plaintiff's trust claim is exempted from limitation under Section 20(1)(a) and (b) of Cap 22
No; the claim for a declaration that the defendant holds the title in trust and should surrender it does not fall within the exempted categories, so the six-year period under Section 20(2) applies.
The court held that the exemption from limitation applies only to actions in respect of fraud or fraudulent breach of trust to which the trustee was a party, or to recover trust property or proceeds in the trustee's possession or converted to his use. The plaintiff's claim, as pleaded in paragraph 13 of the plaint, did not fall within those limbs, and no fraud was pleaded with particulars, so the six-year limitation governed and the claim dating to 1970 was statute barred.
Whether Article 159 of the Constitution could save the otherwise time-barred suit
No; complying with the limitation statute is a requirement of the law, not a technicality, so Article 159 does not apply.
The plaintiff invoked Article 159(2)(e) urging the court to do justice without undue regard to procedural technicalities. The court rejected this, holding that the requirement that a claim fall within Section 20(1) before time ceases to run is a substantive requirement of the law, not a technicality, and that Article 159 cannot be used to override written law.
The fate of the defendant's counterclaim
The counterclaim was not affected by the limitation ruling and was directed to proceed to hearing on its merits.
Although the plaintiff's suit was dismissed as time barred, the court expressly preserved the defendant's counterclaim for hearing on the merits, meaning the limitation determination disposed only of the plaintiff's claim.
Legal principles established
#- Time does not run in a beneficiary's action only where the claim falls under Section 20(1)(a) or (b) of the Limitation of Actions Act; in all other trust claims the limitation period is six years under Section 20(2).
- The plea of fraud or fraudulent breach of trust must be specifically pleaded with particulars; absence of such pleading is not a mere technicality curable by Article 159 of the Constitution.
Court orders
#- 1.The plaintiff's claim is dismissed as time barred by limitation
- 2.The defendant's counterclaim shall proceed for hearing on merits
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction; limitation under the Limitation of Actions Act (Cap 22)
Relief refused
#Declaratory order that the defendant holds title Number Kimilili/Kibingei/216 in trust for the plaintiff's family and should surrender it
The claim was not covered by Section 20(1)(a) or (b) of Cap 22, so a six-year limitation applied and the claim, dating back to 1970, was time barred.
Costs
No costs order stated in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The claim by the plaintiff is clearly not covered by Sec. 20(1) (a) or (b). It is only when a claim is covered by the aforesaid Sections that time does not run.
This requirement cannot be said to be a technicality. It is a requirement of the Law. Article 159 of the Kenya Constitution does not therefore apply to this case.
The Plaintiffs claim is therefore barred by limitation of actions. The defendants Counter Claim shall proceed for hearing on merits.
Issues in the judgment
#The judgment states the preliminary objection was raised by the plaintiff, yet it was argued by counsel for the defendant and resulted in dismissal of the plaintiff's claim, suggesting the objector was the defendant.
Inconsistent reference to the constitutional article - the plaintiff relied on 'article 59 2(e)' while defendant's counsel answered on 'article 159' of the Constitution.
Counsel for the defendant is recorded variously as 'Madam Mufutu' and 'Madam Mfutu'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Sande Wafula (Suing as the Legal representative of the estate of the late Wafula Mulunda John (Deceased) v Jairus Wakhungu Mulunda [2017] KEELC 303 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/303/eng@2017-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.