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Court of AppealPartially AllowedCivil Appeal 124 of 2003· [2007] KECA 115 (KLR)

M’IKIARA M’RINKANYA & Another v GILBERT KABEERE M’MBIJIWE [2007] KECA 115 (KLR)

Court of Appeal of Kenya
31 July 2007
Philip Kiptoo TunoiP. K. TunoiEOE. O. O’KubasuEGE. M. Githinji
5,507 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a land eviction judgment cannot be enforced after 12 years—the occupier gains rights through adverse possession.

What this practically means

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Executive summary

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The two appellants appealed against the dismissal by the High Court at Meru (Kasanga Mulwa J) of their 2001 suit seeking a declaration that execution of the 1979 decree in Meru SRMCC No. 115 of 1979, by which they had been ordered evicted from plot No. 58A Nkubu market, was statute-barred under section 4(4) of the Limitation of Actions Act. The 1979 decree had been upheld on appeal by the High Court in 1979 and by this Court on 21st February 1984, but the respondent took no effective execution steps until a warrant of eviction issued ex parte on 16th November 2001, nearly 18 years after the final judgment. The learned Judge had held that the words "may not" in section 4(4) conferred a discretion to allow execution after 12 years. The Court of Appeal allowed the appeal. It held that "may not" does not confer any such discretion: the limitation periods in Part II of the Act are subject only to extension under Part III, none of which the respondent invoked. The Court further held that, as construed by Kenyan courts, "action" in section 4(4) includes all post-judgment proceedings, including execution and eviction proceedings for possession of land, which are barred after 12 years; the narrower English construction (Lowsley v Forbes) was declined as it would import English statutes into Kenyan law. A judgment for possession of land must be enforced within 12 years, failing which the decree-holder's rights are extinguished and the judgment debtor acquires possessory title by adverse possession. The Court set aside the superior court's judgment and substituted a declaratory judgment in terms of prayer (a) of the plaint, with each party bearing its own costs of the suit and the appeal. This ruling binds lower courts on the construction of section 4(4).

Key legal issues

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01

Construction of "may not" in section 4(4) of the Limitation of Actions Act

Holding

The phrase does not give the court a discretion to override the 12-year limitation period; the Act must be construed as a whole, with Part II subject only to the extension mechanisms in Part III.

Reasoning

The phrase "may not" recurs throughout Part II for different causes of action. If the legislature intended to confer absolute discretion it would have said so expressly. Part III provides escape routes (disability, acknowledgment, part payment, fraud, mistake, ignorance of material facts). The respondent did not bring himself within Part III, and missing court files or general injustice are not recognized grounds of extension. Had "shall not" been used, Part II would conflict with Part III; the use of "may not" avoids repugnancy while keeping the periods subject only to Part III.

p. 4
02

Whether execution proceedings fall within "action" in section 4(4)

Holding

Yes. Kenyan courts have construed "action" more widely than English courts; all post-judgment proceedings including execution to recover possession of land are barred after 12 years.

Reasoning

English authorities (Lowsley v Forbes; W.T. Lamb & Sons v Rider) treat execution as procedural and exclude it from "action", but the Court declined to import that construction, holding it would amount to importing English statutes and usurping the legislature. The local decisions (Njuguna v Njau; Malakwen Arap Maswai v Paul Koskei) cannot be impeached and remain good law, as does Lougher v Donovan in this country. Section 7 and section 17 of the Act, and the law of adverse possession, reinforce the bar on recovery of land proceedings after 12 years.

p. 4
03

Whether the 2001 suit offended section 34(1) of the Civil Procedure Act

Holding

No. The suit raised a substantive question of limitation and jurisdiction, not merely a procedural question about execution of a decree; nor was a declaratory suit objectionable under Order II rule 7 CPR.

Reasoning

The Court held the issue was not merely procedural about execution, discharge or satisfaction of a decree but a substantive question of law whether recovery of the suit premises was time-barred and whether the court had jurisdiction to issue an eviction order. In any event the respondent could not raise that ground on appeal absent a notice under Rule 91(1) of the Court of Appeal Rules.

p. 8

Legal principles established

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  • The phrase "may not" in section 4(4) of the Limitation of Actions Act does not confer a discretion on the court; the limitation periods in Part II are subject only to extension under Part III of the Act.
  • In Kenya, the word "action" in section 4(4) of the Limitation of Actions Act includes all post-judgment proceedings, including execution and eviction proceedings for recovery of possession of land, which are statute-barred after 12 years.
  • A judgment for possession of land must be enforced within the 12-year limitation period in section 7 of the Limitation of Actions Act; thereafter the decree-holder's rights are extinguished and the judgment debtor acquires possessory title by adverse possession.
  • The mere filing of an application for execution is not the same as the execution of the decree.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the superior court delivered on 23rd January 2003 dismissing the appellants' suit set aside
  3. 3.Substituted therefor an order allowing the appellants' suit and granting declaratory judgment in terms of prayer (a) of the plaint dated 24th November 2001 only
  4. 4.No orders of costs of the appeal and in the court below; each party to bear its own costs

Authorities

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Legislation

  • Limitation of Actions Actsection 4(4)
  • Limitation of Actions Actsection 4(2)
  • Limitation of Actions Actsection 4(3)
  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 8
  • Limitation of Actions Actsection 10(3)
  • Limitation of Actions Actsection 19(1)
  • Limitation of Actions Actsection 19(2)
  • Limitation of Actions Actsection 3
  • Limitation of Actions ActPart II and Part III
  • Limitation of Actions Actsection 2(2)(3)
  • Limitation of Actions Actsection 17
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 34(1)
  • Civil Procedure RulesOrder XXI Rules 30(1), 31, 18(1)
  • Civil Procedure RulesOrder XX Rule 12(1)
  • Civil Procedure RulesOrder II rule 7
  • Court of Appeal RulesRule 91(1)
  • Interpretation and General Provisions Actsection 3(1)
  • English Limitation Act 1939section 2(4)
  • English Limitation Act 1980section 24(1), section 38(1)
  • Rules of Supreme Court (England)Order 46 rule 2(1)(a)
  • Constitution of Kenyanull

Cases cited (9)

  • Mohamed v Sarda
    [1970] EA 358
  • Njuguna vs. Njau
    [1981] KLR 225
  • Malakwen Arap Maswai vs. Paul Koskei
    Eldoret Civil Appeal No. 230 of 2001 (unreported)
  • Lamb & Sons Ltd v Rider
    [1948] 2 All ER 402
  • Lougher v Donovan
    [1948] 2 All ER 11
  • National Westminister Bank PLC v Powney
    [1991] Ch. 339
  • Lowsley vs Forbes
    [1999] 1 AC 329
  • Dhodia v National & Grindlays Bank Ltd
    [1970] EA 195
  • B.P. Properties Ltd v Buckler
    [1987] 2 EG LR 168
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 216 of 2001
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules; appeal from the High Court (no specific constitutional provision invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "M’IKIARA M’RINKANYA & Another v GILBERT KABEERE M’MBIJIWE [2007] KECA 115 (KLR)", Case Analysis (2007). Civil Appeal 124 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/115/eng@2007-07-03

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