Alex Kiarie Thiru v Cannon Assurance
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2010 judgment became unenforceable under section 4(4) of the Limitation of Actions Act
Yes; twelve years lapsed on 12/11/2022 and the judgment is stale and cannot be enforced.
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.
Whether section 90(3) of the Land Act allows a chargee to pursue multiple remedies
No; the remedies are disjunctive and a chargee must elect one; election to sue extinguished the statutory power of sale.
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.
Whether the plaintiff was entitled to a discharge of charge
Yes; having elected to sue and slept on the judgment for 12 years, the defendant lost its rights under the charge.
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.
Legal principles established
#- 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
#- 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.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.Restraint on the defendant from transferring, charging or disposing of the plaintiff's title in the suit property
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.