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ELCDismissed· [2015] KEELC 12 (KLR)

Francis Kamau Murai & another v Gatundu & Mangu Co.Ltd & another [2015] KEELC 12 (KLR)

High Court of Kenya
5 November 2015
1,975 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a family's land claim because it was filed 16 years too late, confirming Kenya's strict 12-year time limit for land recovery suits.

What this practically means

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Executive summary

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The plaintiffs, executors of the will of Wilfred Murai Gacheru (deceased), brought an amended Notice of Motion under Order 40 and Order 51 of the Civil Procedure Rules seeking maintenance of status quo over LR No. 8569/5 Kahawa West and an injunction restraining the defendants from selling, alienating or transferring the property. They alleged their father held 100 shares in the 1st Defendant company entitling him to a portion of the land upon subdivision, but the company had neither subdivided the land nor allocated the deceased's share. The 2nd Defendant filed a preliminary objection and replying affidavit, contending he purchased 4 acres from the deceased in 1984, had been in possession and had sold plots to third parties; that the suit was time-barred under the Limitation of Actions Act; and that the plaintiffs lacked locus standi and cause of action. The court applied the Mukisa Biscuit test and held the objection raised pure points of law. It found the deceased died in 1995, the grant was confirmed in 1998, and the suit was filed in 2014 - 16 years later - without leave, offending section 7 of the Limitation of Actions Act. The will did not list the suit property, and a 1984 sale agreement showed the deceased had sold his share to the 2nd Defendant. The preliminary objection was upheld, and the entire suit and the Notice of Motion were dismissed with costs to the Defendants.

Key legal issues

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01

Whether the 2nd Defendant's objection was a proper preliminary objection

Holding

Yes - limitation and locus standi are pure points of law capable of disposing of the suit preliminarily

Reasoning

The court adopted the Mukisa Biscuit definition and Nitin Properties restatement, holding that the questions of limitation and locus standi were pure points of law arguable on the pleadings without ascertaining facts, and therefore fitted the description of a preliminary objection.

p. 3
02

Whether the suit was time-barred under section 7 of the Limitation of Actions Act

Holding

Yes - the suit was filed 16 years after confirmation of the grant, beyond the 12-year limit, without leave

Reasoning

The deceased died in 1995 and the grant was confirmed in 1998; the suit was filed in 2014. The court held that the claim to recover land filed more than 12 years after the right accrued offended section 7 of the Limitation of Actions Act, and no leave of the court was obtained nor was the suit property listed in the schedule to the grant.

p. 3
03

Whether the plaintiffs had locus standi against the 2nd Defendant

Holding

No - the suit property was not listed in the deceased's will and evidence showed the deceased sold his share to the 2nd Defendant in 1984

Reasoning

The will did not list the suit property as part of the estate; a 1984 sale agreement showed the deceased sold his share to the 2nd Defendant, who had been in possession, subdivided and sold plots. The plaintiffs therefore had no locus standi and no cause of action against the 2nd Defendant, who was wrongly sued.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded are correct and cannot be raised where facts must be ascertained
  • An action to recover land may not be brought after twelve years from when the right of action accrued

Court orders

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  1. 1.The 2nd Defendant's preliminary objection is sustained
  2. 2.The plaintiffs' suit and the amended Notice of Motion dated 10th December 2014 are dismissed with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1,2,3,4 & 8
  • Civil Procedure RulesOrder 51 Rules 1,13 and 14
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 3A
  • Limitation of Actions ActSection 7

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Nitin Properties Ltd Vs Jagjit Singh Kalsi & another
    Civil Appeal No.132 of 1989
  • Quick Enterprises Ltd Vs. Kenya Railways Corporation
    Kisumu High Court Civil Case No.22 of 1999
Jurisdiction invoked
Order 40 Rules 1,2,3,4 & 8, Order 51 Rules 1,13 and 14 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, Cap 21

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, "Francis Kamau Murai & another v Gatundu & Mangu Co.Ltd & another [2015] KEELC 12 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/12/eng@2015-11-05

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