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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 3819 (KLR)

Kamongo Farmers Co-operative Society Ltd v Chief Land Registar & 9 others [2018] KEELC 3819 (KLR)

Environment and Land Court
11 April 2018
MKMOHAMMED NOOR KULLOW
514 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 5th Defendant/Respondent raised a Notice of Preliminary Objection contending that the claim against him was bad in law and misconceived, and sought its dismissal with costs. The objection was disposed of by consent through written submissions; the 5th Defendant filed submissions but the Plaintiff, though given the opportunity, filed none. The 5th Defendant argued that the claim related to recovery of land, which under section 7 of the Limitation of Actions Act must be brought within 12 years of accrual, and that the accompanying claim of professional negligence alleged to have occurred in 1996 was also statute-barred. The court, citing section 7 of the Act, held that an action to recover land may not be brought after 12 years, and found that the negligence-based cause of action had lapsed in 1999. The court applied the Court of Appeal decision in CMW v JPM (Civil Appeal No. 142 of 2016) on the effect of delay, and adopted Bosire J's statement in Rawal v Rawal (1990 KLR 275) that limitation enactments protect defendants from stale claims rather than extinguish claims. Finding the delay inordinate and noting that the Plaintiff could seek remedy elsewhere for the professional negligence claim, the court upheld the preliminary objection on the ground of limitation and struck out the suit as against the 5th Defendant with costs. The judgment was delivered in open court at Narok on 11 April 2018 by Mohammed Noor Kullow J.

Key legal issues

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01

Limitation of action to recover land

Holding

The claim against the 5th Defendant to recover land was barred under section 7 of the Limitation of Actions Act, 12 years having lapsed since the cause of action accrued

Reasoning

The court applied section 7 of the Limitation of Actions Act, which bars any action to recover land after 12 years from accrual of the cause of action. Coupled with the negligence claim dating from 1996 (lapsed by 1999), the delay was inordinate and the court upheld the preliminary objection, striking out the suit against the 5th Defendant with costs.

p. 1
02

Limitation of professional negligence claims

Holding

A claim founded on professional negligence alleged to have occurred in 1996 could not be brought years later; the cause of action lapsed in 1999

Reasoning

Relying on the limitation framework and authority on delay, the court held that a negligence-based claim accruing in 1996 was statute-barred. It noted the plaintiff could seek remedy elsewhere against other parties, and that inordinate delay justified striking out the claim against the 5th Defendant.

p. 1

Legal principles established

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  • An action to recover land may not be brought after 12 years from when the cause of action accrued (section 7, Limitation of Actions Act)
  • The object of limitation statutes is to protect defendants from stale claims, not to extinguish claims

Court orders

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  1. 1.Preliminary objection on the ground of limitation upheld
  2. 2.Suit against the 5th Defendant struck out with costs

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 26

Cases cited (2)

  • CMW -VERSUS- JPM
    Civil Appeal No. 142 of 2016
  • RAWAL -VERSUS- RAWAL
    1990 KLR 275
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (suit for recovery of land and professional negligence); determination of a preliminary objection

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, "Kamongo Farmers Co-operative Society Ltd v Chief Land Registar & 9 others [2018] KEELC 3819 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3819/eng@2018-04-11

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