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Court of AppealPartially AllowedCivil Appeal 124 of 2003· [2007] KECA 467 (KLR)

M’IKIARA M’RINKANYA & ANOTHER v GILBERT KABEERE M’MBIJIWE [2007] KECA 467 (KLR)

Court of Appeal of Kenya
31 July 2007
5,508 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you have only 12 years to enforce a court judgment on land — after that, the judgment holder loses the right to evict.

What this practically means

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Executive summary

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The appellants, owners of plot No. 58A Nkubu market, sued in the High Court at Meru seeking a declaration that the respondent could not execute the 1979 decree in Meru SRMCC No. 115 of 1979 (eviction and damages) because section 4(4) of the Limitation of Actions Act bars action upon a judgment after twelve years. The respondent had obtained eviction on 16th November 2001, nearly eighteen years after the Court of Appeal's final judgment of 21st February 1984 and over twenty years after the trial decree. Kasanga Mulwa J dismissed the 2001 suit, holding that the words 'may not' in section 4(4) left the court a discretion to allow execution after twelve years. Allowing the appeal, this Court held that 'may not' does not confer any discretion; Part II limitation periods are subject only to the extension mechanisms in Part III, none of which the respondent invoked. The Court further construed 'action' in section 4(4) widely, in line with Njuguna v Njau and Malakwen Arap Maswai v Paul Koskei and Lougher v Donovan, to include execution proceedings, so that all post-judgment proceedings are statute-barred after twelve years. Declining to follow the narrower English approach in Lowsley v Forbes, the Court reasoned that importing it would amount to importing English statutes and usurping the legislature; and section 7's bar on actions to recover land after twelve years, coupled with adverse possession, requires judgments for possession of land to be enforced within twelve years. The Court set aside the superior court's judgment and substituted declaratory judgment in terms of prayer (a) of the plaint, with no orders of costs in either court, each party bearing its own costs.

Key legal issues

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01

Whether 'may not' in section 4(4) of the Limitation of Actions Act gives the court a discretion to allow execution after twelve years

Holding

It does not. The Act must be construed as a whole; Part II limitation periods are subject only to the extension provisions of Part III (disability, acknowledgment, part payment, fraud, mistake, ignorance of material facts). The superior court erred in construing the phrase in isolation.

Reasoning

The phrase 'may not' recurs throughout Part II in relation to many causes of action. If the legislature intended an absolute discretion it would have expressly said so. Part III provides escape routes in restricted cases; had 'shall not' been used in Part II it would have been repugnant to Part III. The respondent did not rely on any Part III provision and the Judge made no finding of extending circumstances.

p. 4
02

Whether 'action' in section 4(4) includes execution/eviction proceedings

Holding

Yes, under Kenyan law the word is construed widely: all post-judgment proceedings including proceedings for execution of judgment are barred after twelve years. The notice of motion of 15th November 2001 for a warrant of eviction, filed nearly 18 years after the final judgment, was an 'action' upon a judgment to recover possession of land and was statute-barred.

Reasoning

Local decisions (Njuguna v Njau; Malakwen Arap Maswai v Paul Koskei) construed 'action' in section 4(4) as including all civil proceedings including execution, and were reinforced by Lougher v Donovan. Departure from these decisions in favour of Lowsley v Forbes was considered and declined because Kenyan circumstances differ and conforming to English law would usurp legislative powers. Section 7's twelve-year bar on actions to recover land and the adverse-possession provisions are consistent with this construction.

p. 8
03

Whether the court should depart from its own previous decisions to follow Lowsley v Forbes

Holding

No. The local decisions cannot be impeached: the twelve-year bar on judgment debts is consistent with English authority; and the narrow English construction is backed by English law reform which does not apply in Kenya, so importing it would amount to importing English statutes and usurping the legislature.

Reasoning

The Court acknowledged it is free to depart from its previous decisions if it appears right to do so (citing Dhodia v National & Grindlays Bank Ltd). But the construction by local courts barring recovery after twelve years is consistent with Lowsley v Forbes on judgment debts, and any conforming of Kenyan statute to English procedural reforms would offend canons of statutory construction.

p. 7
04

Whether execution more than one year after decree required notice to show cause

Holding

Yes. Since the respondent sought to execute more than one year after the decree, a notice to show cause under Order XXI rule 18(1) CPR should have been issued and the appellants given an opportunity to be heard.

Reasoning

Order XXI rule 18(1) CPR requires the executing court to issue a notice to show cause where an application for execution is made more than one year after the date of decree. The 2001 application was made nearly 18 years after the judgment; natural justice required the judgment debtors be heard.

p. 8

Legal principles established

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  • The phrase 'may not' in Part II of the Limitation of Actions Act does not confer a discretion on the court to disapply limitation periods; the periods are subject only to extension in the restricted cases specified in 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 interlocutory proceedings for execution of a judgment; such proceedings are statute-barred after twelve years
  • A judgment for possession of land must be enforced within the twelve-year period stipulated in section 7 of the Limitation of Actions Act; if not enforced, the decree holder's rights are extinguished and the judgment debtor acquires possessory title by adverse possession

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

Authorities

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Legislation

  • Limitation of Actions Actsection 4(4)
  • Limitation of Actions Actsection 3
  • Limitation of Actions ActPart II
  • Limitation of Actions ActPart III
  • 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 2(2)(3)
  • Limitation of Actions Actsection 17
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 34(1)
  • Civil Procedure RulesOrder XXI Rule 30(1) and 31
  • Civil Procedure RulesOrder XXI Rule 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)
  • Limitation Act 1939 (England)section 2(4)
  • Limitation Act 1980 (England)section 24(1)
  • Limitation Act 1980 (England)section 38(1)
  • Rules of Supreme Court (England)Order 46 rule 2(1)(a); Ord. 42 r. 23(a)

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 appeal to the Court of Appeal under the Court of Appeal Rules (appeal from the judgment and decree of the High Court); Rule 91(1) Court of Appeal Rules referenced on grounds of appeal

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, "M’IKIARA M’RINKANYA & ANOTHER v GILBERT KABEERE M’MBIJIWE [2007] KECA 467 (KLR)", Case Analysis (2007). Civil Appeal 124 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/467/eng@2007-07-31

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