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ELCStruck OutNot stated in the judgment (Civil Suit, Bungoma)· [2018] KEELC 2344 (KLR)

Benjamin Barasa Wafula v Gladys Nekoye Murunga & 6 others [2018] KEELC 2344 (KLR)

Environment and Land Court
19 July 2018
2,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land-grabbing suit because it was filed more than twelve years after the alleged taking, showing delay can end land claims.

What this practically means

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Executive summary

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The Plaintiff, acting in person, sued seven defendants seeking confirmation of registered acreage of L.R. No. KIMILILI/KAMUKUYWA/339 and 337, eviction of the defendants from portions allegedly grabbed and annexed to parcels 1408 and 2268, and annual agricultural damages for trespass. He pleaded that the 1st defendant grabbed portions of the deceased father's parcel 339 between 1994 and 1995, subdivided it and sold portions to the 2nd to 7th defendants, and pleaded fraud. Benjamin Barasa Wafula, by an application dated 9th March 2016 drawn in person, sought to be enjoined as an interested party and interlocutory injunctive relief restraining the defendants from dealing with parcel 339, invoking Order 1 Rules 10(1-2), 14, 8(3) and Order 8 Rules 3(5) and 5(1) of the Civil Procedure Rules. The 1st and 2nd defendants opposed, questioning the applicant's locus standi and asserting the suit was statute barred; the 3rd defendant also pleaded res judicata, citing prior criminal and civil proceedings. The court, noting the plaintiff's own pleadings that the grabbing occurred between 1994 and 1995, held that Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years, so the suit filed on 9th November 2015 was statute barred. Section 26 (fraud) could not assist absent evidence. The suit and the application were struck out, with costs awarded to the 1st, 2nd, 3rd, 4th, 5th and 7th defendants.

Key legal issues

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01

Whether the suit is barred by the limitation of actions

Holding

The suit was filed on 9th November 2015, well over twelve years after the cause of action accrued between 1994 and 1995, and is statute barred under Section 7 of the Limitation of Actions Act

Reasoning

The plaintiff's own plaint pleaded that the 1st defendant grabbed the land between 1994 and 1995. Section 7 bars actions to recover land after twelve years. Even assuming Section 26 (fraud) applied, there was no evidence of fraud justifying extension, and the 2nd defendant's occupation since 1994 meant the plaintiff could with reasonable diligence have discovered any alleged fraud then rather than waiting until 2015.

p. 4
02

Whether an interested party can be enjoined in a suit that is itself incompetent

Holding

An application to be enjoined cannot survive where the suit is statute barred; it suffers the same fate as the suit

Reasoning

The court declined to determine whether pleadings could properly be filed on the basis of a power of attorney, holding that once the suit is statute barred, no purpose is served in addressing collateral issues in the application.

p. 4

Legal principles established

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  • An action to recover land may not be brought after twelve years from the date the right of action accrued
  • A plaintiff is bound by his own pleadings as to when the cause of action accrued for limitation purposes

Court orders

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  1. 1.The suit is struck out for being statute barred
  2. 2.The application dated 9th March 2016 is struck out
  3. 3.The Plaintiff to meet the costs of the 1st, 2nd, 3rd, 4th, 5th and 7th defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rules 10(1-2), 14, 8(3); Order 8 Rules 3(5) and 5(1)
  • Limitation of Actions Act (CAP 22 LAWS OF KENYA)Section 7
  • Limitation of Actions Act (CAP 22 LAWS OF KENYA)Section 26

Cases cited (3)

  • Criminal Case No.1084 of 2003 at Kimilili Court
  • Civil Suit No.32 of 2009
  • Civil Suit No.141 of 1995
Jurisdiction invoked
Original civil jurisdiction over land disputes; application under Order 1 Rules 10(1-2), 14, 8(3) and Order 8 Rules 3(5) and 5(1) 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, "Benjamin Barasa Wafula v Gladys Nekoye Murunga & 6 others [2018] KEELC 2344 (KLR)", Case Analysis (2018). Not stated in the judgment (Civil Suit, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2344/eng@2018-07-19

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