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ELCAllowedOriginating Summons dated November 22, 2013· [2022] KEELC 3443 (KLR)

Waruhiu & 2 others v Gal Construction Limited (Environment & Land Case 1430 of 2013) [2022] KEELC 3443 (KLR)

High Court of Kenya
12 May 2022
LMLUCY N. MBUGUA
1,743 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 discharged a 27-year-old charge over family land because the lender waited too long to enforce its debt.

What this practically means

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Executive summary

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The plaintiffs, executors of the estate of Samuel Njoroge Waruhiu, sought by originating summons the discharge of charges over LR Githunguri/Githiga/233, 869, 1408 and 1407, registered in 1994 to guarantee a payment obligation of Sawa Flora Limited to the defendant contractor. The company had defaulted on a decree of Kshs 20,057,229 arising from HC Misc. Application No. 1257 of 1994, paid Kshs 17,000,000, and later wound up. The defendant sued the directors in HCCC No. 2316 of 1997, which was dismissed for want of prosecution, yet refused in 2013 to discharge the charges, asserting it still intended to realise the debt. The defendant did not defend the suit, which proceeded as an undefended claim canvassed by affidavit evidence and written submissions. The court framed one issue: whether the charge should be discharged. Relying on sections 4(4) and 19(1) of the Limitation of Actions Act, the court held the 1995 decree was time barred, and that following the dismissal of the 1997 suit the debt issue had become moot. Invoking the maxim that equity will not suffer a wrong without a remedy, and noting the defendant had held the deceased's titles for 27-28 years, the court ordered the charges discharged forthwith, directed the defendant to relinquish the titles within 45 days, allowed the plaintiffs to apply for provisional titles in default, and made no order as to costs.

Key legal issues

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Whether the charge over the suit properties should be discharged as the defendant's right to enforce the decree had been extinguished by limitation

Holding

Yes. The decree of April 28, 1995 was time barred, and the defendant's subsequent suit HCCC No. 2316 of 1997 was dismissed for want of prosecution, rendering the debt issue moot; the charge was discharged and titles ordered returned.

Reasoning

Section 4(4) of the Limitation of Actions Act bars actions on judgments after twelve years, and section 19(1) bars actions to recover secured principal sums after twelve years. The decree of April 28, 1995 was well over twelve years old. The defendant's later suit against the directors was dismissed for want of prosecution and never revived. Holding the deceased's titles for 27-28 years was unconscionable, and equity demands a remedy.

p. 3

Legal principles established

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  • An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered
  • An action to recover a principal sum secured by a mortgage on land must be brought within twelve years of accrual
  • A matter is moot where further legal proceedings can have no effect and no actual controversy remains

Court orders

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  1. 1.The Charge registered against LR Numbers Githunguri/Githiga/233, 869, 1408 and 1407 is discharged forthwith
  2. 2.The defendant is given 45 days within which to relinquish to the plaintiffs the discharged titles for the said parcels
  3. 3.In default of availing the original title and charge, the plaintiff is at liberty to apply for provisional titles in respect of the said parcels
  4. 4.No order as to costs
Jurisdiction invoked
Original civil jurisdiction of the High Court; suit instituted by originating summons seeking discharge of a charge

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, "Waruhiu & 2 others v Gal Construction Limited (Environment & Land Case 1430 of 2013) [2022] KEELC 3443 (KLR)", Case Analysis (2022). Originating Summons dated November 22, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3443/eng@2022-05-12

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