Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 359 of 1981· [2023] KEELC 18469 (KLR)

Kiarie & 2 others v Kungu & another

Environment and Land Court
16 March 2023
LKL. Komingoi
1,290 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

#

A Kenyan court refused to enforce a 1988 land arbitration award because the winners waited 32 years, past the six-year legal deadline.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court (L. Komingoi J) determined a notice of motion dated November 13, 2020 by which the plaintiffs sought to enter judgment in terms of an arbitral award dated October 3, 1988, in a land dispute dating back to 1981. They sought cancellation of the registration of four land parcels in the name of the late Joseph Njoroge Kungu, redistribution of the land per the award (the estate receiving 1.5 acres and the remainder shared among the children of three brothers), and that the Deputy Registrar sign the necessary subdivision and transfer documents. The defendants opposed, contending the application to enforce the award was time barred. The court framed two issues: whether execution of the award was time barred under the Limitation of Actions Act, and who should bear costs. Applying Section 4(1)(c), which bars actions to enforce an award after six years, the court agreed with the defendant that the application, filed 32 years after the award was read on December 15, 1988, was time barred. It noted the defendant's appeal was dismissed by October 3, 1997, yet the plaintiffs did nothing thereafter, found them indolent, and held their explanation for the delay wanting. The court also agreed that the Limitation of Actions Act applies to actions whose timelines are provided for in the Act, whether in a fresh suit or an old suit. The application was dismissed with costs to the Defendant/Respondent.

Key legal issues

#
01

Whether the application to adopt and enforce the 1988 arbitral award was time barred

Holding

Yes; the application, brought 32 years after the award was read, was barred by Section 4(1)(c) of the Limitation of Actions Act

Reasoning

Section 4(1)(c) bars actions to enforce an award after six years. The award was read on December 15, 1988; the defendant's appeal was dismissed by October 3, 1997, yet the plaintiffs did nothing until November 13, 2020. The court found the plaintiffs indolent and their explanation for the delay wanting, and agreed the Limitation of Actions Act applies to old suits.

p. 3
02

Who should bear costs of the application

Holding

The Defendant/Respondent, as the successful party

Reasoning

Having found the application time barred and dismissed it, the court exercised its discretion on costs in favour of the Defendant/Respondent in accordance with the ordinary rule that costs follow the event.

p. 4

Legal principles established

#
  • An action to enforce an arbitral award may not be brought after six years from when the cause of action accrued, and the Limitation of Actions Act applies to actions whose timelines for doing such acts are provided for in the Act, whether in a fresh suit or an old suit.

Court orders

#
  1. 1.The notice of motion dated November 13, 2020 seeking to enter judgment in terms of the Arbitral Award dated October 3, 1988 is dismissed.
  2. 2.Costs of the application to the Defendant/Respondent.

Authorities

#

Legislation

  • Civil Procedure RulesOrder 46 rules 18 and 20; Order 46 rule 18(1); Order 46 rule 16
  • Civil Procedure ActSection 3A
  • Limitation of Actions ActSection 4(1)(c); Section 4(4); Section 37

Cases cited (2)

  • Boleyn Magic Wall Panel Ltd vs Nesco Services Ltd
    Machakos HCCC 16 of 2017

    Cited by plaintiffs to support the position that the arbitral award remains in force as it was never set aside

  • Stanley Kinoti & 15 Others vs Simon Gitobu Ithiria & Another
    [2019] eKLR

    Cited by defendant to support the submission that the application is time barred and unexplained delay is fatal

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; application brought under Order 46 rules 18 and 20 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kiarie & 2 others v Kungu & another", Case Analysis (2023). Environment & Land Case 359 of 1981. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18469/eng@2023-03-16

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