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ELCDismissedNot stated in judgment· [2019] KEELC 618 (KLR)

John Kiarie Waweru & another v Emma Njoki Njoroge [2019] KEELC 618 (KLR)

Environment and Land Court
21 November 2019
COChristine Ochieng
677 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer suing over a deceased person's estate got extra time to sue — the twelve-year clock only starts when the grant is confirmed.

What this practically means

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Executive summary

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The Defendant filed a Notice of Preliminary Objection dated 8th April 2019 seeking to have the suit struck out on two grounds: that the claim was statute barred under sections 4 and 7 of the Limitation of Actions Act, and that the cause of action offended section 6 of the Land Control Act because no Land Control Board consent was obtained. The Defendant filed submissions relying on three authorities; the Plaintiff filed none. The court framed a single issue: whether the suit is statute barred. Applying section 7 of the Limitation of Actions Act, the court observed that the suit centred on a claim over land, but that the sale agreement of 12th September 2003 provided for completion upon the vendor obtaining a Certificate of Confirmation of Grant in respect of the deceased owner's estate. The Defendant had entered the agreement before obtaining Letters of Administration Intestate, and the Certificate of Confirmation of Grant was issued on 10th June 2008. The court held that time only began to run on that date and would lapse on 10th June 2020, so the claim was not statute barred. On the Land Control Board consent issue, the court held that since the Plaintiffs were in occupation and fraud had been pleaded and denied, those questions required evidence and could only be determined at a full hearing. The court further found the objection amounted to reliance on technicalities offending Articles 50 and 159(2)(d) of the Constitution. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether the suit is statute barred under section 7 of the Limitation of Actions Act

Holding

The suit is not statute barred; time began to run on 10th June 2008 when the Certificate of Confirmation of Grant was issued, so limitation would lapse on 10th June 2020.

Reasoning

The sale agreement dated 12th September 2003 provided that completion depended on the vendor obtaining a Certificate of Confirmation of Grant in respect of the deceased owner's estate. The Defendant entered the agreement before obtaining Letters of Administration Intestate. Since the subject of the contract involved a deceased person's estate, time only began running upon issuance of the Certificate of Confirmation of Grant on 10th June 2008, meaning the twelve-year period ran to 10th June 2020, well after the suit was filed.

p. 1
02

Whether lack of Land Control Board consent under section 6 of the Land Control Act fatal at the preliminary stage

Holding

No; since the Plaintiffs are in occupation of the land and fraud is pleaded and denied, the issues of consent and fraud can only be determined at a full hearing.

Reasoning

The court held that where the Plaintiffs are in occupation, the question of Land Control Board consent can only be ascertained at a full hearing and not at an interlocutory stage. The Defendant had also pleaded fraud against the Plaintiffs, which they denied, and such averments require evidence and determination at trial. Relying on these considerations, the court found the objection a reliance on technicalities offending Articles 50 and 159(2)(d) of the Constitution.

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Legal principles established

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  • Where the subject of a contract involves the estate of a deceased person, time for limitation purposes only begins to run once the party obtains a Certificate of Confirmation of Grant.
  • A preliminary objection cannot be raised where facts have to be ascertained or where judicial discretion is sought.
  • Fraud averments and issues of Land Control Board consent cannot be determined at interlocutory stage where the plaintiff is in occupation, but must await full hearing.

Court orders

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  1. 1.The Preliminary Objection dated the 8th April, 2019 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Limitation of Actions Actsections 4 and 7
  • Land Control Actsection 6
  • Constitution of KenyaArticle 50; Article 159(2)(d)

Cases cited (4)

  • Esther Gachambi Mwangi V Samuel Mwangi Mbiri
    (2013) eKLR
  • Shakespeare Investments & Another V Paul Kipsang Kosgei
    (2006) eKLR
  • In Re Estate of Joseph Gitonga Migwi (Deceased)
    (2008) eKLR
  • Independent Electoral and Boundaries Commission V Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; constitutional provisions cited: Articles 50 and 159(2)(d) of the Constitution

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, "John Kiarie Waweru & another v Emma Njoki Njoroge [2019] KEELC 618 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/618/eng@2019-11-21

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