Joseph Kirumba Ndungu v Wakakoro Ole Sakuda [2019] KEELC 3632 (KLR)
The bottom line
#A Kenyan court ruled that a signed written acknowledgement of a land payment restarts the 12-year clock, allowing a family to recover Kshs. 390,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's claim was statute barred under section 7 of the Limitation of Actions Act
The claim was not statute barred because the Defendant's representatives acknowledged in writing on 26th April 2003 the payment of Kshs. 390,000, triggering a fresh accrual of the right of action under sections 23 and 24 of the Limitation of Actions Act
The contract was made in 1987, more than twelve years before suit. However, minutes of a 26th April 2003 meeting recorded by the Defendant's family representative and signed by Francis Ole Sakuda stated that if terms could not be agreed the family would refund Kshs. 390,000. This constituted a written, signed acknowledgement by an authorised representative, so the right of action accrued afresh from that date.
Whether the Plaintiff was entitled to specific performance
Specific performance was refused; instead the court ordered restitution of the purchase price with interest from 26th April 2003, since the transaction was not completed and the sale agreement was not produced
The court found, relying on Peter Mbiri Michuki v Samuel Mugo Michuki, that a land transaction existed and that Kshs. 390,000 was paid, corroborated by the Defendant's admission in the 2003 minutes to refund the price, the AFC charge on the title, and the circumstances of the title deed's return. However, since the agreement was not produced and the transaction was never completed, refund of the purchase price with interest was the just and equitable remedy rather than specific performance.
Costs
Costs awarded to the Plaintiff
The court found the Plaintiff had been inconvenienced by the Defendant's actions and therefore awarded the costs of the suit to the Plaintiff.
Legal principles established
#- Section 3(3) of the Law of Contract Act, which came into effect in 2003, does not apply to oral contracts for the sale of land concluded before its commencement; part performance may corroborate such a contract
- An acknowledgement in writing and signed by the person making it confers a fresh accrual of the right of action under sections 23 and 24 of the Limitation of Actions Act
Court orders
#- 1.A declaration that the Defendant is in breach of performance and is liable to make specific restitution of the consideration together with interest thereon at court rates
- 2.The Defendant to refund to the Plaintiff Kshs. 390,000 paid as consideration with interest at court rates from 26th April 2003 until payment in full
- 3.The costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Environment and Land Court established under Article 162(2)(b) of the Constitution (original jurisdiction over land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kirumba Ndungu v Wakakoro Ole Sakuda [2019] KEELC 3632 (KLR)", Case Analysis (2019). ELC Case No. 163 of 2017 (Formerly Machakos ELC Case No. 184 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3632/eng@2019-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.