Oshwal Supermarket v David Amenya Motuka & 7 others [2019] KEELC 4178 (KLR)
The bottom line
#The Environment and Land Court in Kisii dismissed landowners' attempt to throw out Oshwal Supermarket's claim, confirming that time limits to recover land run for 12 years from when you gain ownership.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is statute barred under the law of limitation for suits founded on fraud
The suit is not statute barred; limitation had not even begun to run against the plaintiff, which acquired its interest on 9th May 2013, and in any event enjoys the 12-year period for recovery of land under Section 7 of the Limitation of Actions Act
The plaintiff was registered as owner of the suit property on 9th May 2013 upon discharge of the charge by Prime Bank Ltd. Its cause of action could only arise from that date, since that is when it acquired an interest in the property. The suit filed on 30th March 2015 was less than 2 years later. Additionally, as a claim to recover land, Section 7 of the Limitation of Actions Act allows 12 years. The defendants' 3-year fraud limitation argument therefore failed.
Whether the plaintiff's suit should be struck out as defective and an abuse of process
The application to strike out was dismissed; there was material raising genuine questions as to the authenticity of the defendants' titles
The court traced the chain of title and found that in 2009, when the 1st defendant purportedly subdivided the suit property, it was registered in the name of Quasar Limited and charged to Prime Bank Limited. It was unclear how the 1st defendant came to be registered, and if the plaintiff's assertions were true, the authenticity of the defendants' titles would be questioned. This disclosed triable issues, defeating the striking-out application.
Legal principles established
#- A plaintiff's cause of action in respect of land accrues from the date it acquired its interest in the property, not from earlier fraudulent transactions of which it was not the registered owner
- An action to recover land may not be brought after the end of twelve years from the date the right of action accrued (Section 7, Limitation of Actions Act, Cap 22)
Court orders
#- 1.The defendants' Notice of Motion dated 1st November 2017 is dismissed
- 2.No order for costs as the plaintiff did not file a response to the application
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land (statutory basis not expressly cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oshwal Supermarket v David Amenya Motuka & 7 others [2019] KEELC 4178 (KLR)", Case Analysis (2019). Kisii HCCC (ELC) suit, plaint dated 27th March 2015, filed 30th March 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4178/eng@2019-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.