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ELCDismissedNot stated in the judgment· [2017] KEELC 303 (KLR)

Alex Sande Wafula (Suing as the Legal representative of the estate of the late Wafula Mulunda John (Deceased) v Jairus Wakhungu Mulunda [2017] KEELC 303 (KLR)

High Court of Kenya (Bungoma)
22 November 2017
661 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The High Court in Bungoma dismissed a family land trust claim filed nearly three decades late, ruling that Kenya's six-year time limit applies unless fraud is specifically pleaded.

What this practically means

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Executive summary

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The court delivered a ruling on a preliminary objection that the plaintiff's suit, seeking a declaratory order that the defendant holds title Number Kimilili/Kibingei/216 (2.3 acres) in trust for the plaintiff's family and should surrender it, was time barred under Section 20 of the Limitation of Actions Act (Cap 22). The plaintiff argued that time does not run in trust claims involving fraud or where trust property is in the trustee's possession or converted to his use, and alternatively invoked Article 159(2)(e) of the Constitution to urge the court to do justice without regard to technicalities. Defendant's counsel (Madam Mufutu/Mfutu) argued the suit, filed some 29 years after the events, was really a trespass case, that no particulars of fraud were pleaded as required by Order 2 rule 4 of the Civil Procedure Rules, and that Article 159 cannot be used to override written law. The court held that the plaintiff's claim as pleaded did not fall within Section 20(1)(a) or (b), so the six-year limitation under Section 20(2) applied; the claim dating back to 1970 was therefore statute barred. It further held that meeting the statutory requirement was not a mere technicality and Article 159 did not apply. The plaintiff's claim was dismissed as time barred, while the defendant's counterclaim was ordered to proceed to hearing on its merits. Judgment was read in open court at Bungoma on 22 November 2017 before S. Mukunya, Judge.

Key legal issues

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01

Whether the plaintiff's trust claim is exempted from limitation under Section 20(1)(a) and (b) of Cap 22

Holding

No; the claim for a declaration that the defendant holds the title in trust and should surrender it does not fall within the exempted categories, so the six-year period under Section 20(2) applies.

Reasoning

The court held that the exemption from limitation applies only to actions in respect of fraud or fraudulent breach of trust to which the trustee was a party, or to recover trust property or proceeds in the trustee's possession or converted to his use. The plaintiff's claim, as pleaded in paragraph 13 of the plaint, did not fall within those limbs, and no fraud was pleaded with particulars, so the six-year limitation governed and the claim dating to 1970 was statute barred.

p. 2
02

Whether Article 159 of the Constitution could save the otherwise time-barred suit

Holding

No; complying with the limitation statute is a requirement of the law, not a technicality, so Article 159 does not apply.

Reasoning

The plaintiff invoked Article 159(2)(e) urging the court to do justice without undue regard to procedural technicalities. The court rejected this, holding that the requirement that a claim fall within Section 20(1) before time ceases to run is a substantive requirement of the law, not a technicality, and that Article 159 cannot be used to override written law.

p. 2
03

The fate of the defendant's counterclaim

Holding

The counterclaim was not affected by the limitation ruling and was directed to proceed to hearing on its merits.

Reasoning

Although the plaintiff's suit was dismissed as time barred, the court expressly preserved the defendant's counterclaim for hearing on the merits, meaning the limitation determination disposed only of the plaintiff's claim.

p. 2

Legal principles established

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  • Time does not run in a beneficiary's action only where the claim falls under Section 20(1)(a) or (b) of the Limitation of Actions Act; in all other trust claims the limitation period is six years under Section 20(2).
  • The plea of fraud or fraudulent breach of trust must be specifically pleaded with particulars; absence of such pleading is not a mere technicality curable by Article 159 of the Constitution.

Court orders

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  1. 1.The plaintiff's claim is dismissed as time barred by limitation
  2. 2.The defendant's counterclaim shall proceed for hearing on merits
Jurisdiction invoked
Original civil jurisdiction; limitation under the Limitation of Actions Act (Cap 22)

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, "Alex Sande Wafula (Suing as the Legal representative of the estate of the late Wafula Mulunda John (Deceased) v Jairus Wakhungu Mulunda [2017] KEELC 303 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/303/eng@2017-11-22

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