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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 4368 (KLR)

Agnes Andenyi Imbuchi v Nancy Witambula Ambula & 2 others [2019] KEELC 4368 (KLR)

Environment and Land Court
26 February 2019
1,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land fraud claim filed nine years after the owner learned of the transfer, because the three-year limitation clock had already run out.

What this practically means

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Executive summary

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The 1st defendant, Beatrice Khayanga Imbuchi, applied under Order 2 rule 15 of the Civil Procedure Rules and sections 4(2) and 26 of the Limitation of Actions Act for the striking out of the plaint filed on 9th June 2016 by the plaintiff, her mother-in-law. The plaint alleged fraud by the plaintiff's late son, Richard Mise Imbuchi, in the transfer of land parcel Kakamega/Lumakanda/3274, registered in his name on 7th February 2005. The applicant argued that the plaintiff's own certificate of official search, filed in Eldoret Succession Cause No. 316 of 2012, showed she placed a caution on the title on 13th February 2007 and therefore had knowledge of the transfer and any alleged fraud from that date, making the claim time barred. She further contended the plaint disclosed no reasonable cause of action and was frivolous and vexatious, and sought restitution of the property. The respondent opposed, arguing the land was at risk of being sold, that limitations over land ran for twelve years, and asked for a stay pending the pending succession revocation suit. The court concurred with the applicant, holding that the plaintiff's 2007 caution demonstrated knowledge of the transfer and any alleged fraud, so the suit was time barred under the three-year tort limitation. It also held restitution could not be granted on an application as it is a substantive order. The plaint was struck out with no orders as to costs. N.A. Matheka J delivered the judgment at Kakamega on 26th February 2019.

Key legal issues

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01

Whether the suit was filed outside the limitation period

Holding

Yes. The plaintiff placed a caution on the suit property on 13th February 2007, evidencing knowledge of the transfer and any alleged fraud; the suit filed on 9th June 2016 was therefore time barred under section 4(2) of the Limitation of Actions Act.

Reasoning

The court accepted the applicant's submission that the plaintiff's own certificate of official search, filed in Eldoret Succession Cause No. 316 of 2012, showed she placed a caution on the suit property on 13th February 2007. That caution demonstrated awareness of the transfer and of the alleged fraud from 2007 at the latest. An action founded on tort may not be brought after three years from accrual, so the 2016 suit was statute barred and struck out.

p. 3
02

Whether the 1st defendant could obtain restitution of the suit property by way of the striking-out application

Holding

No. Restitution is a substantive order that cannot be granted through an interlocutory application.

Reasoning

Although the applicant sought restitution in her notice of motion, the court held that such relief is substantive in nature and unavailable on an application. The judgment does not indicate that the applicant was directed to file a proper suit for restitution, and that relief simply fell away with the striking out of the plaint.

p. 3

Legal principles established

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  • Where a plaintiff had knowledge of a transfer of land from the date she placed a caution on the title, time for limitation purposes begins to run from that date, and a claim founded on tort brought beyond three years is time barred.

Court orders

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  1. 1.The plaintiff/respondent's plaint dated 9th June 2016 be struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 2 rule 15(1)(a),(b),(c); Order 51 rule 1
  • Limitation of Actions Actsections 4(2), 26
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 2 rule 15 and Order 51 rule 1 of the Civil Procedure Rules; sections 4(2) and 26 of the Limitation of Actions Act

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, "Agnes Andenyi Imbuchi v Nancy Witambula Ambula & 2 others [2019] KEELC 4368 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4368/eng@2019-02-26

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