Charles Barasa Manaba v Norah Wanyama [2018] KEELC 4787 (KLR)
The bottom line
#A landowner who waited over 12 years to sue for vacant possession lost his case because Kenya's Limitation of Actions Act had already run out.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata because Kakamega CMCC No. 186 of 2000 was dismissed for want of jurisdiction, not heard and finally determined by a competent court
Section 7 of the Civil Procedure Act requires that the matter in issue in the former suit was heard and finally decided by a court competent to try the subsequent suit. The proceedings of 25th October 2000 show the former suit was dismissed on a preliminary objection disputing the court's jurisdiction; the court was not competent to hear the matter and therefore its dismissal cannot ground res judicata.
Limitation of actions
The suit is time barred; the cause of action arose more than 12 years before the suit was filed in 2012
The plaintiff, as registered proprietor, sought orders against trespass and recovery of vacant possession, which is governed by the 12-year rule under the Limitation of Actions Act Cap 22. The defendant's occupation dated back to 1964, and the plaintiff's contention that prior suits stopped time did not save the claim filed in 2012, well over twelve years after the cause of action arose.
Striking out the plaint
The application dated 1st November 2012 under Order 2 Rule 15(1)(b) and section 7 of the Civil Procedure Act has merit and the plaint is struck out with the suit dismissed
The court accepted the defendant's submissions that the suit was time barred and otherwise frivolous, vexatious and scandalous. Although res judicata failed, the time-bar ground independently justified striking out the plaint and dismissing the suit, with costs to the defendant.
Amendment of pleadings
The application to amend the plaint to add four more defendants is dismissed
The defendant opposed the amendment as made too late in the day, an afterthought and meant to delay the suit, citing authority where a similar application to add a defendant was rejected. The court found the application could not stand once the suit itself had been dismissed, and dismissed it with costs.
Legal principles established
#- For res judicata under section 7 of the Civil Procedure Act, the former suit must have been heard and finally decided by a court competent to try the subsequent suit; a suit dismissed for want of jurisdiction cannot found res judicata
- A claim by a registered proprietor against a trespasser for vacant possession is governed by the 12-year limitation rule under the Limitation of Actions Act Cap 22
Court orders
#- 1.The plaintiff's suit is dismissed with costs to the defendant (allowing the application dated 1st November 2012)
- 2.The plaintiff's application dated 30th July 2014 to amend the plaint to add four more defendants is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land parcel KAKAMEGA/CHEKALINI/556 (no specific constitutional or statutory provision invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Barasa Manaba v Norah Wanyama [2018] KEELC 4787 (KLR)", Case Analysis (2018). Not stated in judgment (Kakamega suit filed 20th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4787/eng@2018-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.