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ELCDismissedNotice of Motion dated 19th December 2016· [2017] KEELC 3260 (KLR)

Amos Nyaga Kangangi v Murangi Gakinya, Harison Gichimu Mwangi,Robert J. Thuo A. Nyaga,Diocese of Meru registered Trustees,Mwenendega Enterprises Limited,Agnes Wawira Ireri, Monica Gatakaa Kirusa,Gilbert Gatakaa Kirusa,Komotho C/O Kamwire,Wilson Wachira Mugo,Julius Maina Kamotho, Julius Muriuki Waithaka,Teresia Ruguru Muriuki,John M.N. Nderi,Joshua Ndungu Kingori,Harrison Waihenya Muthoni,Jane Kabura Thuo,Abel Muriithi Wamuti, Josephine Njeri Wamuti, Philip Wamuti Muchane,Anthony Mbiri Ndwiga & Patrick Muriithi Njogu (Environment and Land Miscellaneous Application 8 of 2016) [2017] KEELC 3260 (KLR)

High Court of Kenya
3 March 2017
BOB.N. Olao
1,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that being broke is not a legal 'disability' that extends the time limit for filing a land claim.

What this practically means

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Executive summary

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The ex-parte applicant sought leave, by Notice of Motion dated 19th December 2016 under Section 22 of the Limitation of Actions Act and Sections 1A, 1B and 3A of the Civil Procedure Act, to file suit out of time against twenty-two respondents. He claimed to have been the registered proprietor since 1961 of land parcel GATURI/GITHIMU/633, and that upon returning from Mombasa in 2003 he discovered that the 1st respondent had fraudulently transferred the land in 1973 to the 2nd and 3rd respondents, who sub-divided and transferred it down the chain to the remaining respondents. He explained his delay in suing by financial constraints, deponing that he was 'financially disabled'. The application was canvassed by Mr Macharia advocate on the supporting affidavit and grounds. Olao J held that under Section 26 of the Limitation of Actions Act time only began to run on discovery of the fraud in 2003, and combined with Section 7 (twelve years for recovery of land) the applicant had until 2015, so by December 2016 he was one year out of time. Section 22 offered a further six-year window only where the applicant was under a statutory disability, defined by Section 2(2)(b) as minority or unsoundness of mind; financial - and even physical - disability does not qualify. The court further observed, obiter, that where a claimant genuinely falls under Sections 22 or 26 (disability, fraud or mistake), leave is unnecessary, since those provisions permit suit notwithstanding expiry of the limitation period, with limitation raised at trial; only Section 28 requires leave, for Section 27 claims. The application was dismissed.

Key legal issues

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01

Whether financial disability constitutes a disability under Section 22 of the Limitation of Actions Act

Holding

It does not; Section 2(2)(b) confines disability to minority or unsoundness of mind

Reasoning

The applicant attributed his failure to sue promptly to lack of finances. The court construed the statutory definition of disability in Section 2(2)(b), which covers only minors and persons of unsound mind (including those detained under written law). The court expressed sympathy but held that neither financial nor even physical disability qualifies, so the application for extension of time could not stand.

p. 3
02

Whether leave is required to file a suit out of time under Sections 22 or 26 of the Limitation of Actions Act

Holding

No leave is required; such provisions themselves permit suit notwithstanding expiry of the limitation period, with limitation raised at trial

Reasoning

The court observed that Sections 22 and 26 allow a party to file suit notwithstanding expiry of the limitation period where the action falls within disability, fraud or mistake. Leave is only expressly required by Section 28 for ignorance of material facts in negligence, nuisance or breach of duty claims under Section 27. Limitation objections can be raised as a preliminary issue at trial.

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Legal principles established

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  • The disability contemplated under Section 22 of the Limitation of Actions Act is limited to minority or unsoundness of mind, and does not extend to financial or physical disability
  • Where a claimant falls within Sections 22 or 26 of the Limitation of Actions Act (disability, fraud or mistake), no prior leave of the court is required; the claimant may file the suit notwithstanding expiry of the limitation period and limitation is raised at trial
  • Under Section 26 of the Limitation of Actions Act, time does not begin to run until the fraud is discovered

Court orders

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  1. 1.The Notice of Motion dated 19th December 2016 stands dismissed

Authorities

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Legislation

  • Limitation of Actions ActSection 22
  • Limitation of Actions ActSection 26
  • Limitation of Actions ActSection 27
  • Limitation of Actions ActSection 28
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 2(2)(b)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51
On appeal from
null
null
Jurisdiction invoked
Section 22 of the Limitation of Actions Act; Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Amos Nyaga Kangangi v Murangi Gakinya, Harison Gichimu Mwangi,Robert J. Thuo A. Nyaga,Diocese of Meru registered Trustees,Mwenendega Enterprises Limited,Agnes Wawira Ireri, Monica Gatakaa Kirusa,Gilbert Gatakaa Kirusa,Komotho C/O Kamwire,Wilson Wachira Mugo,Julius Maina Kamotho, Julius Muriuki Waithaka,Teresia Ruguru Muriuki,John M.N. Nderi,Joshua Ndungu Kingori,Harrison Waihenya Muthoni,Jane Kabura Thuo,Abel Muriithi Wamuti, Josephine Njeri Wamuti, Philip Wamuti Muchane,Anthony Mbiri Ndwiga & Patrick Muriithi Njogu (Environment and Land Miscellaneous Application 8 of 2016) [2017] KEELC 3260 (KLR)", Case Analysis (2017). Notice of Motion dated 19th December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3260/eng@2017-03-03

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