John Rotich Chuma v Teresiah Naisuku Kitakita [2018] KEELC 1546 (KLR)
The bottom line
#The High Court refused to strike out a landowner's suit for trespass and vacant possession, confirming that limitation periods only start running from the date of dispossession.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaint should be struck out as statute-barred and an abuse of process
The application was dismissed; the plaint, on its own averments, shows the plaintiff was dispossessed in January 2014, so the 12-year limitation period under section 7 of the Limitation of Actions Act had not run when the suit was filed.
Section 7 must be read with section 9(1) of the Limitation of Actions Act: the right to sue for recovery of land accrues on the date of dispossession. The plaint pleads dispossession in January 2014, while the defendant's assertion of possession since 1997 appears nowhere in the plaint and is a matter of evidence for trial. Since 12 years from 2014 had not lapsed, no reasonable cause of action was absent. Contestable evidential matters are not a proper basis for striking out, which requires great caution.
Legal principles established
#- Striking out a pleading is a discretionary power to be exercised with the greatest care and caution, not driving away a litigant from the seat of justice
- A suit should not be summarily dismissed unless it is plainly and obviously hopeless and incurable by amendment; a mere semblance of a cause of action should go to trial
- Under section 9(1) of the Limitation of Actions Act, where a person entitled to land has been dispossessed, the right of action to recover the land accrues on the date of dispossession
- A defence based on facts not appearing in the pleading sought to be struck out is a matter of evidence to be proven at trial and cannot sustain striking out
Court orders
#- 1.Notice of Motion dated 22nd November 2017 dismissed with costs to the plaintiff
- Jurisdiction invoked
- Order 2 Rule 15 of the Civil Procedure Rules (original civil jurisdiction of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Rotich Chuma v Teresiah Naisuku Kitakita [2018] KEELC 1546 (KLR)", Case Analysis (2018). Molo CMCC (as stated in ruling; Notice of Motion dated 22nd November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1546/eng@2018-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.