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ELCDismissedNkubu PMCC No. 55 of 2013 (Appeal)· [2019] KEELC 4330 (KLR)

Stephen Kirimi Munyua v Stephen Nkoroi M’Ibari (suing as the administrator of the estate of Ibari Rintaugu (deceased); David Kirimi Josphat Mbae & 2 others (Interested Parties) [2019] KEELC 4330 (KLR)

High Court of Kenya (first appeal), Meru
28 February 2019
ECE.C Cherono
1,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed there is no time limit for asking the Lands Registrar to fix land boundaries, even decades after a disputed subdivision.

What this practically means

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Executive summary

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This is a first appeal from the ruling of Hon. N.M Idagwa, RM, delivered on 27 February 2015 in Nkubu PMCC No. 55 of 2013. The ruling dealt with a notice of preliminary objection in which the defendant sought to strike out the plaintiff's application dated 12/8/2013 and the entire suit as time barred under sections 7 and 16 of the Limitation of Actions Act (Cap 22) and section 28(h) of the Land Registration Act, 2012. The appellant argued that the encroachment of land parcel Abogeta/Upper Kithangari/83 by parcel 505 occurred during the 1997 sub-division into parcels 1251 and 1253, that the respondent slept on his rights until 2013, and that the claim to fix boundaries was therefore limitation-barred. The respondent, through Mwirigi Kaburu & Co. Advocates, countered that the objection was not a pure point of law, that the date time began to run was a factual question for trial, and that a claim for fixing boundaries under the Land Registration Act carries no limitation period. On appeal, E.C Cherono J considered the single question of whether boundary-fixing is subject to section 7 of Cap 22. Associating himself with Munyao Sila J's decision in Francis Kaguma Muhoi vs Regina Wamuyu Kanyi, the court held that a claim for fixing boundaries is not subject to the Limitation of Actions Act and that boundaries may be determined at any time under section 18 of the Land Registration Act. The appeal was found to lack merit and was dismissed with costs to the respondent, on 28 February 2019 at Meru.

Key legal issues

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01

Whether boundary-fixing claims are barred by limitation of actions law

Holding

Boundary fixing is not subject to section 7 of the Limitation of Actions Act; the Land Registration Act prescribes no time limit for the Registrar to fix boundaries

Reasoning

The court adopted the reasoning of Munyao Sila J in Francis Kaguma Muhoi vs Regina Wamuyu Kanyi, holding that a claim for establishment of boundaries is not a claim for recovery of land within section 7 of Cap 22 and that no limitation period applies to approaching the land registrar for boundary determination. The appeal against the magistrate's ruling was therefore devoid of merit and was dismissed with costs.

p. 2

Legal principles established

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  • A claim for fixing of boundaries under section 18 of the Land Registration Act, 2012 is not subject to the Limitation of Actions Act; a party may seek to establish boundaries at any time

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)section 7
  • Limitation of Actions Act (Cap 22)section 16
  • Land Registration Act, 2012section 28(h)
  • Land Registration Act, 2012section 18
  • Land Registration Act, 2012section 16

Cases cited (4)

  • Mehta vs Shah
    (1965) EALR 321
  • Mukisa Biscuits vs West End Distributors
    [1969] EA 696
  • Francis Kaguma Muhoi vs Regina Wamuyu Kanyi
    (2016) eKLR
  • Mary Wamuyu Mwangi vs Joseph Kahara Thinwa
    (2015) eKLR
On appeal from
Principal Magistrate's Court, Nkubu
Nkubu PMCC No. 55 of 2013 (Ruling of Hon. N.M Idagwa, RM dated 27.02.2015)
Jurisdiction invoked
First appellate jurisdiction over a ruling of the Principal Magistrate's Court at Nkubu (statutory appeal; no specific constitutional provision stated in the judgment)

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, "Stephen Kirimi Munyua v Stephen Nkoroi M’Ibari (suing as the administrator of the estate of Ibari Rintaugu (deceased); David Kirimi Josphat Mbae & 2 others (Interested Parties) [2019] KEELC 4330 (KLR)", Case Analysis (2019). Nkubu PMCC No. 55 of 2013 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4330/eng@2019-02-28

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