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Court of AppealDismissedCivil Appeal No. 177 of 2016· [2019] KECA 59 (KLR)

Koinange Investment and Development Company Limited v 1. Ian Kahiu Ngethe 2. Nicholas Ngethe 3. Eddah Gachukia 4. Raphael Kamau Ngethe (Being sued as the personal representatives of the Estate of Robert Nelson Ngethe (deceased) & 6 others

Court of Appeal
20 December 2019
4,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that a stay of execution pauses the 12-year deadline to enforce a judgment, and dismissed Koinange Investment's claim entirely.

What this practically means

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Executive summary

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The appellant, Koinange Investment and Development Company Limited, appealed against the dismissal by Kariuki, J. of its Originating Summons seeking declarations that a 2002 judgment in HCCC No. 3164 of 1995 was no longer executable because the 12-year period in section 4(4) of the Limitation of Actions Act had lapsed, and that it owned the suit property by adverse possession. The dispute arose from a 1988 option agreement over land excised from L.R No. 209/9099; the deceased purchaser obtained an ex parte judgment in 2002, commenced execution in 2004, but was stopped by an order of stay of execution granted by Mutungi, J. pending the appellant's unsuccessful appeal (Civil Appeal No. 108 of 2003) and further proceedings up to the Supreme Court. The Court of Appeal framed two issues: the effect of the stay order on the limitation period, and adverse possession. Holding that a decree holder prevented from executing by a court order should not have time running against him during the stay, the Court found section 4(4) did not bar the respondents' execution, distinguishing M'Ikiara M'Rinkanya where fresh proceedings were filed 18 years after judgment. On adverse possession, the Court held a registered owner in continuous possession cannot claim adversely to his own title. A submission on non-payment of the purchase price was disregarded under rule 104(a) as not appearing in the memorandum of appeal. The appeal was dismissed in its entirety with costs to the respondents.

Key legal issues

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01

Whether an order of stay of execution stops the running of time under section 4(4) of the Limitation of Actions Act

Holding

It does, where the decree holder had already commenced execution and was prevented from continuing by the stay order; time does not run against the decree holder during the subsistence of the stay

Reasoning

While 'action' in section 4(4) includes execution proceedings, the deceased here was not commencing fresh execution proceedings after 12 years; he was continuing an execution exercise already commenced but halted by a court order. The Court distinguished M'Ikiara M'Rinkanya, where proceedings were filed some 18 years after judgment. A party has a duty to obey court orders, and it would be unjust to treat the decree holder as having slept on his rights when a stay was in force.

p. 5
02

Whether the appellant acquired prescriptive rights over the suit land by adverse possession

Holding

No; a registered owner in continuous possession of his own land cannot be in adverse possession of it

Reasoning

Under section 13(1) of the Limitation of Actions Act, a right of action to recover land accrues only where land is in the possession of a person in whose favour the limitation period can run. The appellant had always been the registered owner and never lost possession to the respondents; consistent with Wambugu v Njuguna, dispossession or discontinuance of possession by the owner is a prerequisite. The trial judge was correct to reject the claim.

p. 5
03

Whether a party may argue on appeal a ground not in the memorandum of appeal

Holding

No; without leave of the Court, a party may not argue that a decision below be reversed or varied except on a ground in the memorandum of appeal or notice of cross-appeal

Reasoning

Rule 104(a) of the Court of Appeal Rules expressly bars arguing grounds not specified in the memorandum of appeal. The appellant's submission that non-payment of the purchase price explained the failure to execute was not among the six grounds and was disregarded; in any event it was not a declaration sought in the Originating Summons.

p. 4

Legal principles established

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  • An order of stay of execution pending appeal stops time from running against a decree holder for the purposes of section 4(4) of the Limitation of Actions Act, where execution has already been commenced but is halted by the court order
  • A registered owner in possession of his own land cannot acquire title to that land by adverse possession

Court orders

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  1. 1.Dismissal of grounds 1, 2, 4, 5 and 6 of the appeal on the limitation issue
  2. 2.Dismissal of the ground of appeal on adverse possession
  3. 3.The appeal is dismissed in its entirety
  4. 4.Costs of the appeal awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 278 of 2015 (O.S)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules against the judgment of the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Koinange Investment and Development Company Limited v 1. Ian Kahiu Ngethe 2. Nicholas Ngethe 3. Eddah Gachukia 4. Raphael Kamau Ngethe (Being sued as the personal representatives of the Estate of Robert Nelson Ngethe (deceased) & 6 others", Case Analysis (2019). Civil Appeal No. 177 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/59/eng@2019-12-20

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