Goren & another v Ngetich (Environment & Land Case E001 of 2023) [2024] KEELC 1117 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#What is the true cause of action in the suit?
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.
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.
Is the suit time barred under Section 7 of the Limitation of Actions Act?
No - the suit falls within the Section 20(1)(b) exception for recovery of trust land by a beneficiary under a constructive trust.
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.
Legal principles established
#- 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
#- 1.The application dated 15th February 2024 is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Section 7 and Section 20(1)(b) of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.