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ELCDismissedUnstated (Ex-parte Originating Summons dated 11th October 2016)· [2017] KEELC 3205 (KLR)

In re Matter of Efureith Irima Mugo (Suing In Her Capacity As A Beneficiary And Legal Representative Of The Estate Of Jeremiah Ngiri Kibati Alias Jeremiah Ngiri (Deceased) [2017] KEELC 3205 (KLR)

High Court of Kenya
2 March 2017
YAY.M. Angima
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed it cannot extend the 12-year deadline for land claims, no matter how compelling the fraud story is.

What this practically means

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Executive summary

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The applicant, administrator of the estate of Jeremiah Ngiri Kibati who died on 8th September 1992, discovered after his 2013 appointment that the deceased's land, L.R No. MBETI/KIAMURINGA/173 in Mbeere, Embu County, had been fraudulently subdivided into L.R No. MBEERE/KIRIMA/2231 and 2232 and registered in the names of third parties. By an ex-parte Originating Summons filed on 11th October 2016 under sections 27 and 28 of the Limitation of Actions Act and Order 37 Rule 6 of the Civil Procedure Rules, he sought leave to file suit out of time against six current registered owners. Angima J considered whether the application met the requirements of sections 27 and 28. Section 27 limits the court's power to extend time to tort actions for negligence, nuisance or breach of duty involving personal injuries, tied to the three-year limitation in section 4(2). Land claims fall under section 7, which prescribes twelve years, and the Act provides no mechanism to extend that period. Relying on Court of Appeal decisions - Mary Osundwa v Nzoia Sugar Company Ltd, Willis Onditi Odhiambo v Gateway Insurance Co. Ltd and Divecon Limited v Samani - the court held that Part III of the Act does not apply to causes of action beyond personal injuries tort and that parties cannot confer jurisdiction by consent. The Originating Summons was dismissed with no order as to costs.

Key legal issues

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01

Whether leave to file suit out of time may be granted under sections 27 and 28 of the Limitation of Actions Act for a land claim

Holding

No - the court has no jurisdiction; section 27 applies only to personal injuries tort claims and there is no provision for extending the twelve-year limitation period under section 7

Reasoning

Section 27 restricts extension of time to actions in tort for negligence, nuisance or breach of duty involving personal injuries, tied to the three-year period in section 4(2). Land claims carry a separate twelve-year period under section 7, for which the Act provides no extension mechanism. Court of Appeal authority (Mary Osundwa, Willis Onditi Odhiambo, Divecon) confirms Part III of the Act does not apply to causes of action other than personal injuries tort.

p. 3

Legal principles established

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  • Section 27 of the Limitation of Actions Act confers jurisdiction to extend time only for tort actions for negligence, nuisance or breach of duty in respect of personal injuries; no extension is available for other causes of action such as land claims under section 7
  • Parties cannot confer jurisdiction on a court by consent

Court orders

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  1. 1.The Originating Summons dated 11th October 2016 is dismissed with no order as to costs

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)section 27
  • Limitation of Actions Act (Cap 22)section 28
  • Limitation of Actions Act (Cap 22)section 4(2)
  • Limitation of Actions Act (Cap 22)section 7
  • Limitation of Actions Act (Cap 22)section 4(1)
  • Limitation of Actions Act (Cap 22)section 4(4)
  • Civil Procedure RulesOrder 37 Rule 6

Cases cited (3)

  • Mary Osundwa v. Nzoia Sugar Company Ltd
    2002 eKLR
  • Willis Onditi Odhiambo v. Gateway Insurance Co. Ltd
    (2014) eKLR
  • Divecon Limited vs. Samani
    [1995 - 1998] EA 48
Jurisdiction invoked
Sections 27 and 28 of the Limitation of Actions Act (Cap 22) and Order 37 Rule 6 of the Civil Procedure Rules

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, "In re Matter of Efureith Irima Mugo (Suing In Her Capacity As A Beneficiary And Legal Representative Of The Estate Of Jeremiah Ngiri Kibati Alias Jeremiah Ngiri (Deceased) [2017] KEELC 3205 (KLR)", Case Analysis (2017). Unstated (Ex-parte Originating Summons dated 11th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3205/eng@2017-03-02

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