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ELCPartially AllowedELC Case No. 163 of 2017 (Formerly Machakos ELC Case No. 184 of 2011)· [2019] KEELC 3632 (KLR)

Joseph Kirumba Ndungu v Wakakoro Ole Sakuda [2019] KEELC 3632 (KLR)

Environment and Land Court at Kajiado
25 April 2019
2,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Environment and Land Court at Kajiado (Christine Ochieng, J) delivered judgment in a claim by Joseph Kirumba Ndungu, on his own behalf and on behalf of members of the Muugi & Nganga Family Welfare Association, against Wakakoro Ole Sakuda over 130 acres carved out of land parcel Kajiado/Ntashart/43. The Plaintiff alleged that in 1987 the parties agreed on a sale at Kshs. 3,000 per acre, that the purchase price of Kshs. 390,000 was paid, that a charge to the Agricultural Finance Corporation over the title was discharged, and that the Defendant refused to transfer the land. The Defendant denied the sale and receipt of the price, contending the claim was time barred and that the Plaintiff lacked locus standi. The court framed three issues: limitation, specific performance, and costs. On limitation, it held the written minutes of a 26th April 2003 meeting, in which the Defendant's family acknowledged the payment and offered to refund Kshs. 390,000, constituted a signed acknowledgement triggering fresh accrual under sections 23 and 24 of the Limitation of Actions Act. On specific performance, the court, applying the Court of Appeal decision in Peter Mbiri Michuki, found corroborated proof of a land transaction but, since the agreement was not produced and the transaction incomplete, ordered restitution of the purchase price with interest from 26th April 2003 rather than specific performance. Judgment was entered for the Plaintiff with costs.

Key legal issues

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01

Whether the Plaintiff's claim was statute barred under section 7 of the Limitation of Actions Act

Holding

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

Reasoning

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.

p. 3
02

Whether the Plaintiff was entitled to specific performance

Holding

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

Reasoning

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.

p. 3
03

Costs

Holding

Costs awarded to the Plaintiff

Reasoning

The court found the Plaintiff had been inconvenienced by the Defendant's actions and therefore awarded the costs of the suit to the Plaintiff.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.The costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 23(1)
  • Limitation of Actions Actsection 24
  • Law of Contract Actsection 3(3)
  • Law of Contract Actsection 3(7)

Cases cited (6)

  • Iga versus Makerere University
  • Gathoni Vs Kenya Cooperative Creameries Ltd
  • Hilton V Sultan S. Team Laundry
  • Silverbird Kenya Limited Vs Junction Ltd & 3 others
  • Margaret Muthoni Wanyee V Mukenia Cooperative Limited
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court established under Article 162(2)(b) of the Constitution (original jurisdiction over land disputes)

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, "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.