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ELCStruck Out· [2020] KEELC 1948 (KLR)

Njeru Mwaniki v County Government of Kirinyaga & 3 others [2020] KEELC 1948 (KLR)

Environment and Land Court
29 May 2020
ECE.C. Cherono
1,575 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner who waited 23 years to sue over a road built on his land in 1981 had his entire case struck out as too late.

What this practically means

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Executive summary

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The plaintiff sued in 2014 seeking compensation for loss of user of land parcel Baragwi/Raimu/242, alternatively removal of the Karia-Rwambiti Factory Access Road, which he averred the defendants excavated on his land in 1981 by way of an unprocedural compulsory acquisition without notice or compensation. The 2nd and 3rd defendants filed a Notice of Preliminary Objection dated 17th July 2018 on three grounds: that the suit was time barred under Sections 7 and 32(1) and (2) of the Limitation of Actions Act, and that the plaintiff had no title to the portion carved out under Section 17. By agreement the objection was heard first by way of written submissions. The defendants argued that the cause of action accrued in 1981 and that suit filed in 2014, twenty-three years later, exceeded the twelve-year period prescribed by Section 7. The plaintiff countered that the defendants' occupation constituted continuing trespass giving rise to a fresh cause of action daily. The court, applying Section 7 and the Owners of the Motor Vessel 'Lillians' v Caltex Oil (K) Ltd principle that limitation goes to jurisdiction, held that the claim was statute barred. The preliminary objection was upheld, the plaintiff's suit was struck out with costs, and the claim for compensation, removal of the road and related reliefs was thereby refused. Delivered at Kerugoya on 29th May 2020 by E.C. Cherono, ELC Judge.

Key legal issues

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01

Whether the plaintiff's claim for compensation/removal of the access road constructed on his land in 1981 was barred by Section 7 of the Limitation of Actions Act

Holding

Yes - the suit was filed 23 years after the cause of action accrued in 1981, far beyond the 12-year limitation period, and was therefore statute barred

Reasoning

The court read paragraph 6 of the further amended plaint in which the plaintiff averred that the defendants entered his land in 1981 and excavated the access road. Section 7 of the Limitation of Actions Act prescribes twelve years from accrual. Since the plaintiff waited 23 years and sought no extension of time, the claim was statute barred. Relying on Owners of the Motor Vessel 'Lilians', limitation being jurisdictional, the court upheld the preliminary objection and struck out the suit.

p. 3
02

Whether limitation is a procedural or jurisdictional issue

Holding

Limitation is a material factor going to the jurisdiction of the court, which must be raised and decided at the earliest opportunity

Reasoning

The court adopted the holding in Owners of the Motor Vessel 'Lilians' v Caltex Oil (K) Ltd that a question of jurisdiction must be raised at the earliest opportunity and decided immediately, and that where a court lacks jurisdiction it must stop proceedings. The court agreed with and applied that decision as binding.

p. 2

Legal principles established

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  • An action to recover land may not be brought after twelve years from the date the right of action accrued
  • Limitation goes to the jurisdiction of the court to entertain a claim

Court orders

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  1. 1.The 2nd and 3rd defendants' Notice of Preliminary Objection dated 17th July 2018 is upheld
  2. 2.The plaintiff's suit is struck out
  3. 3.Costs of the suit are awarded to the defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 32(1) and (2)
  • Limitation of Actions ActSection 17
  • Civil Procedure ActSections 1A and 1B

Cases cited (9)

  • Moffat Muriithi Muchai (Suing on behalf of the Estate of the late Milka Njoki Muchai (deceased) Vs Wanjiru Wanjohi Gatundu & 2 others
    (2019) e K.L.R.
  • Bosire Ongera Vs Royal Media Services
    (2015) e K.L.R.
  • Eliud Njoroge Gachiri Vs Stephen Kamau Ng'ang'a
    (2018) e K.L.R.
  • Gladys Koskey Vs Benjamin Mutai
    (2017) e K.L.R.
  • Nguruman Limited Vs Shompole Group Ranch & others
    (2007) e K.L.R.
  • Stephen Karanja Chege Vs Rural Electrification Authority
    (2019) e K.L.R.
  • Lemitei Ole Koros and Another Vs Attorney General
    (2016) e K.L.R.
  • Republic Vs Attorney General & 2 others Ex-parte South and Central (Thika) Investments Ltd
    (2016) e K.L.R.
  • Owners of the Motor Vessel 'Lillians' Vs Caltex Oil (K) Ltd
    (1989) K.L.R 1
Jurisdiction invoked
Article 162(2)(b) Constitution (Environment and Land Court) - not expressly stated in the judgment extract; suit decided under the Limitation of Actions Act, Cap. 22

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, "Njeru Mwaniki v County Government of Kirinyaga & 3 others [2020] KEELC 1948 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1948/eng@2020-05-29

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