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ELCStruck OutNot stated in the extract· [2022] KEELC 404 (KLR)

Samuel Mugabe Menyuri v Selina Nyaboke Makori & another [2022] KEELC 404 (KLR)

Environment and Land Court (High Court station, Kisii)
26 April 2022
1,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck down a 2021 attempt to enforce a 2005 land judgment because decrees must be executed within twelve years.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants for trespass onto L.R No. NORTH MUGIRANGO/BOISANGA/3128 and obtained ex-parte judgment by formal proof on 27th May 2005, the Defendants' Defence having been struck out on 26th October 2004. On 24th July 2007 the parties recorded a consent setting aside the judgment, expunging the ex-parte proceedings, reinstating the Defence and providing for thrown away costs. After some fourteen years of inactivity, the Plaintiff filed a Notice of Motion on 29th September 2021 seeking liberty to execute the eviction order of 4th September 2006, with auctioneers and police security to facilitate eviction. The Defendants opposed through a Replying Affidavit of the 1st Defendant and a Preliminary Objection dated 30th November 2021 on the ground that the application contravened section 4(4) of the Limitation of Actions Act, was time-barred, unexplained by inordinate delay, and that the 2nd Defendant had died. The court framed a single issue: whether the application to execute the 2005 decree was time-barred under section 4(4), which bars actions upon a judgment after twelve years. Applying Willis Onditi Odhiambo and the Court of Appeal decision in M'Ikiara M'Rinkanya, the court held that execution proceedings to recover land are 'actions' caught by the bar, that stale decrees are barred, and that the 2005 judgment ought to have been executed by 2017. The argument that section 4(4) applies only to money decrees was rejected; the argument on abatement was held unsound because substitution does not apply in execution under Order 24 Rule 10. The Preliminary Objection was upheld and the application struck out with costs to the 1st Defendant.

Key legal issues

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01

Whether section 4(4) of the Limitation of Actions Act bars an application to execute a decree for possession of land filed more than 12 years after judgment

Holding

Yes; the application to execute the 2005 judgment filed in 2021 is time-barred and the Preliminary Objection succeeds

Reasoning

Section 4(4) bars actions upon a judgment after 12 years. Relying on Court of Appeal authority, execution proceedings to recover land fall within 'action' and a stale decree not executed within 12 years is barred; failure to enforce extinguishes the decree holder's rights and the judgment debtor acquires possessory title by adverse possession. The 2005 judgment ought to have been executed by 2017, so the 2021 application is out of time.

p. 2
02

Whether execution can issue against a deceased 2nd Defendant notwithstanding abatement

Holding

Substitution does not apply to proceedings in execution of an order under Order 24 Rule 10 of the Civil Procedure Rules

Reasoning

The court noted the Respondent's argument that the suit against the deceased 2nd Defendant had abated, but held this was not legally sound because Order 24 Rule 10 of the Civil Procedure Rules provides that substitution does not apply to proceedings in execution of an order, citing Mueni Kiamba v Mbithi Kimeu (2017) eKLR.

p. 3
03

Whether section 4(4) applies only to money decrees

Holding

No; the submission is without basis

Reasoning

Counsel for the Plaintiff argued that section 4(4) applies only to money decrees. The court rejected this, holding the submission 'without basis', consistent with the authority that execution proceedings to recover possession of land are caught by the limitation bar and are not excluded from the definition of 'action' in section 4(4).

p. 3

Legal principles established

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  • An action may not be brought upon a judgment after twelve years from the date the judgment was delivered
  • Execution proceedings to recover land are actions caught by the limitation bar; non-enforcement of a decree within 12 years extinguishes the decree holder's rights and the judgment debtor acquires possessory title by adverse possession

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The application dated 20.9.2021 is struck out with costs to the 1st Defendant/Respondent

Authorities

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Legislation

  • Limitation of Actions Actsection 4(4)
  • Limitation of Actions Actsection 17 (as referenced in M'Ikiara M'Rinkanya quote)
  • Limitation of Actions Actsection 7 (as referenced in M'Ikiara M'Rinkanya quote)
  • Limitation of Actions Actsection 44
  • Civil Procedure RulesOrder 24 Rule 10

Cases cited (4)

  • Willis Onditi Odhiambo v Gateway Insurance Company Limited
    (2014) eKLR
  • Solongo v Gladys Nanjekho (Being the administrator of the estate of Antonina Makokha (Deceased) & Another
    (2021) eKLR
  • M'Ikiara M' Rinkanya & Another v Gilbert Kabeere M'Mbijiwe
    (2007) eKLR
  • Mueni Kiamba v Mbithi Kimeu
    (2017) eKLR
Jurisdiction invoked
Original civil suit jurisdiction; application to execute decree under the Civil Procedure Rules; Limitation of Actions Act, section 4(4)

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, "Samuel Mugabe Menyuri v Selina Nyaboke Makori & another [2022] KEELC 404 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/404/eng@2022-04-26

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