Gitu v Ndungu & 2 others [2001] KECA 356 (KLR)

Section 37 of the Limitation of Actions Act applies Cap 22 to registered land, but where the registered proprietor's title would otherwise be extinguished it is instead held in trust for the person who has acquired title by adverse possession. Section 175 of the Agriculture Act (Cap 318) further provides that no suit, application or proceeding by the Settlement Fund Trustees shall be rejected or dismissed on the ground of limitation. Read together, these provisions preserve the SFT's interest in land charged for an unpaid settlement loan, so the prescribed period does not extinguish that interest.

Confronted with two conflicting decisions of its own, the Court resolved the conflict by first principles, adopting the statement of judicial policy in Trust Bank Ltd v Eros Chemists Ltd. Since 1977 the Court ceased to be an intermediate appellate court and became Kenya's final court of appeal, analogous to the House of Lords. Because too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the proper development of the law, the Court will normally treat its own decisions as binding but must remain free to depart from them when it appears right to do so.

The Court carefully studied the Nyongesa decision and found two defects: section 37 of the Limitations of Actions Act (Cap 22) was not considered in it, and the decision itself did not deal with section 37 but confined itself to a consideration of section 41 of the Limitations Act. It held it immaterial that Nyongesa had been delivered by a majority under rule 32(3) of the Court's Rules. It therefore preferred Boniface Oredo as containing a more comprehensive and full analysis of the legal position on the extinguishability of the SFT's interest.

The Court acknowledged the difficulty of departing from recent precedent but reasoned that the subsequent decision was erroneous, that the Court is not bound to perpetuate an error, that the decision was recent and had not acquired the respect and following attributable to age, and that it was unlikely property rights had been acquired on the basis of the subsequent decision. It is the duty of the Court to rectify an erroneous decision. Having so declared, the appeal, which rested on the erroneous decision, had to be allowed.

Because the learned judge's conclusion that the plaintiff had acquired title by adverse possession rested on the erroneous Nyongesa decision, the appeal had to be allowed. The Court set aside the whole decree of 11th July 1997 and substituted a decree dismissing the plaintiff's Originating Summons dated 14th March 1988 with costs and declaring that the transfers of the suit property to and from the defendants were valid and lawful, with the plaintiff paying the appellant's costs in both courts.