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Case Brief · caselaw.co.ke
High CourtAllowedOriginating Summons dated 12/4/2023

Alex Kiarie Thiru v Cannon Assurance

High Court of Kenya
17 January 2024
1,693 words in judgment
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The bottom line

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Kenya's High Court ruled a 12-year-old judgment cannot be enforced, and a lender who sued instead of selling the charged land lost its power of sale.

What this practically means

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Executive summary

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The plaintiff, Alex Kiarie Thiru, filed an Originating Summons under Order 37 rule 4 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking a declaration that a judgment of 12/11/2010 in Milimani Civil Case No. 731 of 2003, in which Cannon Assurance obtained Kshs. 4,026,033 plus interest on a counterclaim, had expired and was unenforceable under section 4(4) of the Limitation of Actions Act. He further sought an order compelling the defendant to execute a discharge of charge dated 24/10/1995 over L.R No. Dagoretti/Thogoto/447 and an injunction against transfer, charging or disposal of the property. The plaintiff argued that by suing for the debt, the chargee elected one remedy under section 90(3) of the Land Act and lost the statutory power of sale. The defendant admitted the charge and judgment, contending it could not execute because the plaintiff went into hiding, and that section 90(3) did not restrict it to a single remedy. Justice A. Mabeya held that the twelve-year limitation period lapsed on 12/11/2022; the property had remained available for attachment, so the judgment was stale and unenforceable. Adopting Willis Onditi Odhiambo v Gateway Insurance and David Karanja Kamau, the court held the section 90(3) remedies disjunctive: the defendant, having elected to sue and slept on the judgment for twelve years, waived the right to recover from sale of the property. The Originating Summons was allowed as prayed, entitling the plaintiff to discharge of the charge and injunctive protection. No costs order was recorded.

Key legal issues

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01

Whether the 2010 judgment became unenforceable under section 4(4) of the Limitation of Actions Act

Holding

Yes; twelve years lapsed on 12/11/2022 and the judgment is stale and cannot be enforced.

Reasoning

Section 4(4) bars an action upon a judgment after twelve years from delivery. The judgment of 12/11/2010 was never executed. The defendant's excuse that the plaintiff went into hiding was rejected because the suit property remained available for attachment and sale in execution. Following Willis Onditi Odhiambo v Gateway Insurance Co. Ltd, the court held the judgment stale and unenforceable.

p. 3
02

Whether section 90(3) of the Land Act allows a chargee to pursue multiple remedies

Holding

No; the remedies are disjunctive and a chargee must elect one; election to sue extinguished the statutory power of sale.

Reasoning

The court adopted David Karanja Kamau v Harrison Wambugu Gaita, holding that the word 'or' in section 90(3) shows the Legislature intended the remedies to be disjunctive, distinct and not cumulative. By filing a counterclaim and obtaining judgment, the defendant elected to sue and thereby waived the right to recover the money from sale of the charged property. Pursuing all remedies simultaneously would be oppressive and unlawful.

p. 4
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Whether the plaintiff was entitled to a discharge of charge

Holding

Yes; having elected to sue and slept on the judgment for 12 years, the defendant lost its rights under the charge.

Reasoning

The defendant had the option of suing for the debt or selling the suit property. It sued and obtained judgment but failed to execute it for twelve years, sleeping on its rights. The claim was caught by limitation, and loss lies where it has fallen. The plaintiff therefore made out a case for discharge of the charge over the suit property.

p. 4

Legal principles established

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  • A judgment may not be enforced by execution after the end of twelve years from the date of its delivery under section 4(4) of the Limitation of Actions Act.
  • The remedies under section 90(3) of the Land Act are disjunctive; a chargee who elects to sue for the debt loses the statutory power of sale.

Court orders

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  1. 1.Declaration that the judgment delivered on 12/11/2010 in Milimani Civil Case No. 731 of 2003 has expired and is unenforceable under section 4(4) of the Limitation of Actions Act
  2. 2.Order that the defendant execute a discharge of charge dated 24/10/1995 over L.R No. Dagoretti/Thogoto/447 and release the same to the plaintiff
  3. 3.Restraint on the defendant from transferring, charging or disposing of the plaintiff's title in the suit property
  4. 4.The Originating Summons allowed as prayed
Jurisdiction invoked
Order 37 rule 4 of the Civil Procedure Rules 2010 and section 3A of the Civil Procedure 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, "Alex Kiarie Thiru v Cannon Assurance", Case Analysis (2024). Originating Summons dated 12/4/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/

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