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ELCStruck Out· [2021] KEELC 2839 (KLR)

Monica Wambui Kamau & another (Suing as Legal Representative of the Estate of James Kamau Thiongo) v Golden Sparrow Trading Company Limited & 3 others [2021] KEELC 2839 (KLR)

Environment and Land Court of Kenya
14 June 2021
CYC.K. Yano
3,267 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A family lost their land claim decades after Kenya's government compulsorily acquired the property in 1977, because the 12-year time limit to sue had long expired.

What this practically means

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Executive summary

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The 4th defendant moved the court by Notice of Motion dated 30th October 2019 seeking striking out of the plaintiffs' suit as an abuse of court process and dismissal for contravening Sections 7 and 9 of the Limitation of Actions Act, the application being supported by the 1st, 2nd and 3rd defendants. The applicant relied on Gazette Notices 737 and 738 of 12th March 1976 issued under the Land Acquisition Act, evidence of compensation paid to the late James Kamau Thiong'o (and to National Bank of Kenya in settlement of a charge), a Notice of Taking Possession dated 27th July 1977, and a 1979 letter from the Commissioner of Lands noting the property was vacant. The plaintiffs opposed, contending that the acquisition process was never completed, that the application was vague and incompetent under Order 2 rule 15, and that their claim was founded on acts of trespass occurring in 2008 and 2011, relying on Niaz Mohamed Jan Mohamed v Commissioner of Lands. The court framed two issues: whether the suit was an abuse of process and whether it was time barred. It found the compulsory acquisition completed in 1977, the plaintiffs' title extinguished, the Government the owner since 1977, and hence the suit an abuse of process. It further held the suit, filed on 2nd August 2013, was filed more than 36 years after acquisition and outside the 12-year limitation period. The court struck out the plaintiffs' suit with costs to the defendants.

Key legal issues

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01

Whether the suit land MN/VI/755 was validly and completely compulsorily acquired by the Government

Holding

The court found the acquisition complete in 1977 and title extinguished, applying the equity maxim that equity regards as done that which ought to have been done

Reasoning

The court examined Gazette Notices 737 and 738 of 12th March 1976, evidence of compensation payments to James Kamau Thiong'o and the National Bank of Kenya, the Notice of Taking Possession of 27th July 1977 and the Commissioner of Lands' 1979 letter. Finding no evidence of cancellation of the acquisition, it concluded all preliminary steps must have been undertaken and the process completed in 1977.

p. 3
02

Whether the plaintiffs' suit is an abuse of the court process

Holding

Yes - the suit was an abuse of process given the completed compulsory acquisition and Government ownership

Reasoning

Having found the Government compulsorily acquired the land, compensated the deceased who vacated, and took possession in 1977 with no evidence of cancellation or challenge, the court held the Government is the owner and that the plaintiffs' suit claiming the land could not be sustained and constituted an abuse of court process.

p. 3
03

Whether the claim is statute barred under Sections 7 and 9 of the Limitation of Actions Act

Holding

Yes - the suit filed on 2nd August 2013 was brought more than 36 years after the acquisition and outside the 12-year limitation period

Reasoning

The court reproduced Sections 7 and 9 of the Limitation of Actions Act, held time began running from the 1976-1977 compulsory acquisition, and that 12 years lapsed around 1989. The suit filed in 2013 was therefore filed outside the limitation period and must fail.

p. 4

Legal principles established

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  • Actions to recover land or seeking vacant possession must be brought within twelve years of accrual under Section 7 of the Limitation of Actions Act
  • Upon compulsory acquisition and taking of possession by the Government, the former owner's title is extinguished and does not revert to him or his descendants

Court orders

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  1. 1.The 4th defendant's Notice of Motion dated 30th October 2019 is allowed
  2. 2.The plaintiffs' suit is struck out
  3. 3.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9(1) and (2)
  • Land Acquisition Act No. 47 of 1968Section 6(2)
  • Land Acquisition Act No. 47 of 1968Section 9(1)
  • Land Acquisition Act No. 47 of 1968Section 3
  • Land Acquisition Act No. 47 of 1968Section 19
  • Civil Procedure RulesOrder 2 rule 15
  • Constitution of Kenya 2010(establishment of the National Land Commission)

Cases cited (1)

  • Niaz Mohamed Jan Mohamed –vs- Commissioner of Lands & 4 Others
    [1996] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Land Acquisition Act, Limitation of Actions Act Cap 22, Civil Procedure Rules Order 2 rule 15 invoked)

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, "Monica Wambui Kamau & another (Suing as Legal Representative of the Estate of James Kamau Thiongo) v Golden Sparrow Trading Company Limited & 3 others [2021] KEELC 2839 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2839/eng@2021-06-14

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