Francis Kamau Murai & another v Gatundu & Mangu Co.Ltd & another [2015] KEELC 12 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2nd Defendant's objection was a proper preliminary objection
Yes - limitation and locus standi are pure points of law capable of disposing of the suit preliminarily
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.
Whether the suit was time-barred under section 7 of the Limitation of Actions Act
Yes - the suit was filed 16 years after confirmation of the grant, beyond the 12-year limit, without leave
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.
Whether the plaintiffs had locus standi against the 2nd Defendant
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
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.
Legal principles established
#- 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
#- 1.The 2nd Defendant's preliminary objection is sustained
- 2.The plaintiffs' suit and the amended Notice of Motion dated 10th December 2014 are dismissed with costs to the Defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.