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ELCAllowedKisii ELC (not stated in judgment)· [2017] KEELC 2439 (KLR)

Joseph Onyoni Momanyi v Jaspher Nyakoe Mongare & another [2017] KEELC 2439 (KLR)

Environment and Land Court
12 May 2017
JMJ. M. Mutungi
1,834 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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You have only twelve years to sue to reclaim land in Kenya, and this Kisii court struck out a claim filed decades too late.

What this practically means

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Executive summary

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The 1st defendant moved the court by Notice of Motion dated 4th July 2016 under Order 2 Rule 15(1)(a), (b) and (d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking striking out of the plaintiff's plaint, contending it disclosed no cause of action and was frivolous, vexatious and an abuse of process. The dispute concerned land parcel West Mugirango/Bonyamatuta/84. The plaintiff claimed his deceased father was the registered owner and that the 1st defendant was fraudulently registered; the 1st defendant asserted he lawfully purchased and was registered as owner on 20th September 1978 and has possessed the land since. He relied on a green card, a land registrar's letter confirming a duly registered transfer, and orders of Lady Justice Sitati of 13th February 2015 revoking the grant in Kisii HC Succession Cause No. 460 of 2008 to the extent it included the suit land and declaring it was not part of the deceased's estate. The plaintiff opposed, urging that fraud allegations required viva voce evidence. The court found it undisputed that the 1st defendant was registered in 1978 and had occupied the land continuously, even using it as bank security. Holding that neither the plaintiff's father nor the plaintiff sought to recover the land for over twenty years, the court found the claim statute-barred under Section 7 of the Limitation of Actions Act, noted the plaintiff's prior failed claims before the Land Disputes Tribunal and Chief Magistrate's Court, and concluded the suit disclosed no reasonable cause of action and was an abuse of process. The Motion was allowed, the suit struck out, and costs of the application and suit awarded to the 1st defendant.

Key legal issues

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01

Whether the plaintiff's suit is statute-barred under Section 7 of the Limitation of Actions Act

Holding

The suit to recover the land is time-barred; the right of action accrued over twelve years before filing since the 1st defendant was registered and in possession from 1978

Reasoning

The court found as an undisputed fact that the 1st defendant was registered as owner of the suit property on 20th September 1978 and has occupied and possessed it since. The plaintiff's father died in 1999, but no effort was made by the father or the plaintiff to recover the land during the intervening period of over twenty years, well beyond the twelve-year limit.

p. 3
02

Whether the suit discloses a reasonable cause of action and is an abuse of court process

Holding

The suit is misconceived and discloses no reasonable cause of action, warranting striking out under Order 2 Rule 15

Reasoning

Given the registered title of the 1st defendant since 1978, the registrar's confirmation of a lawful transfer, the revocation of the succession grant so far as it included the suit land, and the failure of the plaintiff's prior claims before the Land Disputes Tribunal and Chief Magistrate's Court, the present suit could not be sustained and amounted to an abuse of process.

p. 4

Legal principles established

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  • 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 1st defendant's Notice of Motion dated 4th July 2016 is granted
  2. 2.The plaintiff's suit is struck out
  3. 3.Costs of the application and the suit awarded to the 1st defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a), (b) and (d)
  • Civil Procedure ActSection 3A
  • Limitation of Actions ActSection 7 (Cap 22)
Jurisdiction invoked
Order 2 Rule 15(1)(a), (b) and (d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Joseph Onyoni Momanyi v Jaspher Nyakoe Mongare & another [2017] KEELC 2439 (KLR)", Case Analysis (2017). Kisii ELC (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2439/eng@2017-05-12

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