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ELCDismissedNotice of Motion dated 15th February 2024· [2024] KEELC 1117 (KLR)

Goren & another v Ngetich (Environment & Land Case E001 of 2023) [2024] KEELC 1117 (KLR)

Environment and Land Court
28 February 2024
1,144 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a bid to strike out an old land sale claim, ruling that an unfinished sale creates a trust exempt from the 12-year time limit.

What this practically means

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Executive summary

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The Defendant, Alex Kiprotich Ngetich, moved the court by Notice of Motion dated 15th February 2024, invoking Section 7 of the Limitation of Actions Act, seeking striking out of the plaintiffs' suit on the ground that the cause of action, founded on an agreement for sale dated 24th March 1976, accrued upon that agreement and became time-barred 12 years later. The Respondents opposed, contending the cause of action arose in 2022 when the Defendant, as administrator of the family of John Kipkemboi Kemei, refused to assist them obtain a replacement title after the original was misplaced, and that they had been in peaceful occupation since 1976 pursuant to an undisputed agreement for sale. The court framed four issues: the cause of action, limitation, merit of the application, and costs. It accepted that the suit as pleaded was for recovery of land and would ordinarily be time-barred 12 years after the agreement. However, because the parties did not dispute the Agreement for Sale and the plaintiffs' possession, while transfer was never completed, the vendor became a constructive trustee following Paul Muthuitha v Wanaoe, converting the claim into one for recovery of trust land by a beneficiary. Though trust was not expressly pleaded, the court applied the Odd Jobs v Mubea principle permitting determination of an unpleaded issue left to the court. The suit was therefore excepted under Section 20(1)(b) of the Limitation of Actions Act, Section 7 did not apply, and the application dated 15th February 2024 was dismissed with costs in the cause.

Key legal issues

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01

What is the true cause of action in the suit?

Holding

Although pleaded as recovery of land, the undisputed existence of an uncompleted Agreement for Sale with purchaser possession converts the cause into one for recovery of trust land by a beneficiary.

Reasoning

The parties agreed an Agreement for Sale existed and that the plaintiffs took possession, but transfer was never completed. On the principle in Paul Muthuitha v Wanaoe, an uncompleted contract makes the vendor a constructive trustee. The pleaded cause of action therefore varied from recovery of land to recovery of trust land by a beneficiary, even though trust was not expressly pleaded.

p. 3
02

Is the suit time barred under Section 7 of the Limitation of Actions Act?

Holding

No - the suit falls within the Section 20(1)(b) exception for recovery of trust land by a beneficiary under a constructive trust.

Reasoning

Section 7 bars actions to recover land after 12 years, which would defeat a claim crystallising in 1988/1990. However, the constructive trust arising from the uncompleted contract brings the suit within the Section 20(1)(b) exception, so the limitation bar does not apply. The unpleaded trust issue could be determined under the Odd Jobs v Mubea principle since it was apparent from pleadings and submissions.

p. 3

Legal principles established

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  • An uncompleted contract for sale of land converts the vendor into a constructive trustee, so a beneficiary's claim for recovery of trust land is excepted from the 12-year limitation period under Section 20(1)(b) of the Limitation of Actions Act.
  • A court may validly determine an unpleaded issue where evidence is led by the parties and the course of the proceedings shows the issue was left to the court to decide.

Court orders

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  1. 1.The application dated 15th February 2024 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 20(1)(b)

Cases cited (6)

  • Delilah Ondari vs Francis Ondieki Atandi
    (2022) eKLR
  • Joseph Njuguna Karugu vs Margaret Nduta Ngugi & 2 others
    (2021) eKLR
  • Sohantadirgadass Rajput & Another vs Divisional Integrated Development Programmes Company Limited
    (2021) eKLR
  • Edward Moonge Lengusuranga vs James Lanaiyara & Another
    (2019) eKLR
  • Paul Muthuitha vs Wanaoe
    Civil Appeal No. 121/1982
  • Odd Jobs vs Mubea
    (1970) E.A. 476
Jurisdiction invoked
Section 7 and Section 20(1)(b) of the Limitation of Actions Act

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, "Goren & another v Ngetich (Environment & Land Case E001 of 2023) [2024] KEELC 1117 (KLR)", Case Analysis (2024). Notice of Motion dated 15th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1117/eng@2024-02-28

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