Bahati Temo & 6 others v Swafiya Abdalla & another [2018] KEELC 3744 (KLR)
The bottom line
#The Mombasa Environment and Land Court confirmed compensation for demolished structures using a government valuation, ruling the claim wasn't filed too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the execution/compensation application was time-barred under Section 4(4) of the Limitation of Actions Act
The application was not time-barred as it was filed within twelve years of the judgment
The plaintiffs argued that the judgment being executed was made more than 12 years earlier and was therefore statute-barred under Sections 4(4) and 17 of the Limitation of Actions Act. The court noted the application was filed on 11th November 2011, within twelve years of the judgment of 12th November 2002, and that the 2013 orders of Mukunya J had not been set aside, so the plaintiffs' grounds had no basis.
What amount of compensation should be set for the plaintiffs' structures
The court adopted the valuation report dated 28th August 2014 as the reasonable compensation, the plaintiffs having failed to file their own valuation reports
Only one valuation report was on file, prepared by the District Valuer pursuant to orders of 27th November 2013. The plaintiffs were given an opportunity to engage their own valuer and file reports but did not do so. The court therefore had no hesitation in adopting the official valuation figures, with no compensation payable to the 7th plaintiff who had no structure.
Effect of the 5th plaintiff's notice of withdrawal of suit
The withdrawal was of no effect because the suit had already been determined in 2002
The 5th plaintiff filed a notice of intention to act in person and notice of withdrawal of suit on 6th October 2017. The court held that since the suit had been determined by judgment on 12th November 2002, there was nothing to withdraw and the notice had no legal effect.
Legal principles established
#- Time for execution of a decree under Section 4(4) of the Limitation of Actions Act runs from the date of judgment, and an application filed within twelve years is not statute-barred
- A notice of withdrawal of suit filed after the suit has already been determined is of no effect
Court orders
#- 1.The application is granted in terms of prayer (2), adopting the figures in the valuation report dated 28th August 2014 as the reasonable compensation payable to plaintiffs who had structures when the suit was ongoing
- 2.No compensation is payable to the 7th plaintiff as he had no structure
- 3.Prayer 5 of the application is granted (concerning execution/enforcement assistance)
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Sections 34, 51 and 94 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bahati Temo & 6 others v Swafiya Abdalla & another [2018] KEELC 3744 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3744/eng@2018-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.