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Court of AppealPartially AllowedCivil Appeal No. 235 of 2016· [2019] KECA 188 (KLR)

Public Service Club Registered Trustees v Mary Wangeci Kethi Kariithi & 3 others [2019] KECA 188 (KLR)

Court of Appeal of Kenya
8 November 2019
2,928 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a land claim was not time-barred because time only starts running when someone actually possesses the disputed land.

What this practically means

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Executive summary

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The Court of Appeal allowed the trustees' appeal against a High Court (Nyamweya, J.) judgment of 17 June 2014 which had dismissed their 1993 claim to 18.95 acres in Upper Hill, Nairobi as time-barred under Section 7 of the Limitation of Actions Act, the cause of action being computed from a letter of allotment to the deceased trustee in March 1975. The Court confined itself to the limitation issue, declining the appellant's invitation to determine the substantive ownership, fraud and trust issues, because the trial court had never addressed them and deciding them at first appellate level would deny the parties a fair hearing on appeal. On limitation, the Court held that the 1973 letter relied on by the trial judge did not constitute notice that the land had been excised and allocated to the deceased; the Minister's 1974 letter confirmed allocation to the Trustees. The deceased never took possession of the property, and following Harrison Ngige Kaara as read with Section 13(1), time could not run absent hostile possession. Further, fraud was pleaded, particularised and supported by evidence but was not considered by the High Court; if established, Sections 20(1) and 26(a) and (b) would afford refuge. The claim was therefore not statute-barred. The Court set aside the impugned judgment, remitted Nairobi ELC Suit No. 3000 of 1993 to the Environment and Land Court for determination on merit, and awarded the appellant the costs of the appeal.

Key legal issues

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01

Whether the claim was statutorily time-barred under Section 7 of the Limitation of Actions Act

Holding

The claim was not time-barred; the trial judge's limitation finding could not stand because possession had never been taken and the 1973 letter did not constitute notice of the excision and allocation to the trustee

Reasoning

The trial judge calculated an 18-year delay from the 1975 letter of allotment. The Court held that the 1973 letter merely discussed revised boundaries and did not disclose any allocation to the deceased; the Minister's 1974 letter confirmed allocation to the Trustees. Without the deceased's possession of the land, time could not run under Section 13(1) as read with Section 7. Due diligence would not have revealed the transfer to the trustee, so the suit filed in 1993 was properly before the court.

p. 4
02

Whether the first appellate court could determine the substantive ownership, fraud and trust issues not decided by the trial court

Holding

No; the Court declined the appellant's invitation to determine those issues and confined itself to limitation, remitting the suit for retrial if the limitation finding fell

Reasoning

Although Rule 29 gives the Court a mandate to re-analyse evidence and reach its own decision, deciding matters the trial court never addressed would deprive the parties of the opportunity to be heard on appeal on those issues, offending the constitutional right to a fair hearing. The Court therefore refrained from delving into the merits of ownership and confined itself to the limitation question.

p. 2
03

Effect of pleaded fraud on the limitation bar

Holding

Fraud was pleaded, particularised and supported by evidence, but the High Court did not consider it; had it done so, the appellant would have been heard on fraud, with Sections 20(1) and 26(a) and (b) as refuge

Reasoning

The Court made no finding on whether the transfer was fraudulent but noted the amended plaint particularised fraud and evidence was called. The trial court failed to consider this evidence before dismissing the suit on limitation alone. If fraud were established at trial, the limitation bar under Sections 20(1) and 26(a) and (b) would not apply, allowing determination on merit.

p. 4

Legal principles established

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  • Under Section 7 of the Limitation of Actions Act read with Section 13(1), the limitation period for recovery of land does not begin to run unless the land is in the possession of a person whose interest is hostile to the owner's
  • A first appellate court should not determine substantive issues that the trial court never addressed, as doing so would deny the parties a fair hearing on appeal; where limitation fails, the proper course is remittal for retrial
  • Where fraud is pleaded, particularised and supported by evidence, a limitation dismissal that ignores that evidence is erroneous, since Sections 20(1) and 26(a) and (b) of the Limitation of Actions Act afford refuge if fraud is established

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court (Nyamweya, J.) dated 17th June 2014 set aside
  3. 3.Nairobi ELC Suit No. 3000 of 1993 remitted to the Environment and Land Court to be heard and determined on merit
  4. 4.Costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9
  • Limitation of Actions ActSection 13 (including 13(1))
  • Limitation of Actions ActSection 20 (including 20(1))
  • Limitation of Actions ActSection 26(a) and (b)
  • Law of Succession ActSection 81
  • Constitution of KenyaRight to fair hearing
  • Court of Appeal RulesRule 29

Cases cited (1)

  • Harrison Ngige Kaara - V – Gichobi Kaara & Shadrack Njanja Kaara
    Nairobi Civil Appeal No. 79 of 1996
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
HCCC No. 3000 of 1993
Jurisdiction invoked
First appeal under the Court of Appeal Rules (Rule 29 invoked); appeal against the judgment and decree of the High Court

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, "Public Service Club Registered Trustees v Mary Wangeci Kethi Kariithi & 3 others [2019] KECA 188 (KLR)", Case Analysis (2019). Civil Appeal No. 235 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/188/eng@2019-11-08

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