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JudgmentHELLEN ENGESIA ASAVA VS STEPHEN SARAMBA VIRACHI6 min read

HELLEN ENGESIA ASAVA VS STEPHEN SARAMBA VIRACHI

Environment and Land Court at Vihiga Environment and Land Court · · E. ASATI, J

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 3 OF 2023

HELLEN ENGESIA ASAVA……………………………..……….PLAINTIFF

VERSUS

STEPHEN SARAMBA VIRACHI………………………………DEFENDANT

RULING

  1. This ruling is in respect of the preliminary objection raised by the Defendant herein vide the Notice of Preliminary Objection dated 21st December 2023.  The preliminary objection which seeks to have the plaint struck out and the suit dismissed is based on the grounds that: -
  2. the plaint has been filed in breach of the Limitation of Actions Act, Chapter 22, Laws of Kenya.
  3. the suit is time barred by dint of the statutory limitation of time.
  4. the court lacks the requisite jurisdiction to take cognizance of, hear and determine the suit.
  5. the suit is an abuse of the court process.
  6. Directions were taken on 6th February 2023 that the preliminary objection be canvassed by way of written submissions, parties to file and exchange written submissions within given timelines and the matter be mentioned on 13/3/2024 for a date for ruling. Pursuant to the directions, the Defendant filed written submissions dated 22nd February 2023 in support of the preliminary objection.
  7. No submissions were filed on behalf of the plaintiff.  Affidavit of service sworn by Seth Maxwell Omondi Okumu on 20th February 2023 shows that the plaintiff ‘s Advocates were served with an extract of the directions given by the court on 6th February 2024.  There being no response by the Respondent, the application proceeded without her participation.
  8. It was submitted on behalf of the Defendant that the plaintiff claims ownership of the suit property on the basis of an alleged award by Vihiga Land Disputes Tribunal which award was adopted as an order of the court in January 2004.  That the inordinate delay renders the suit statute-barred and the claim extinguished and sterile.  That limitation of time for land claims exists for three reasons which are:
  9. a Plaintiff with a good cause of action ought to pursue it with reasonable diligence;
  10. a defendant might have lost evidence over time to disprove a stale claim;
  11. long dormant claims have more cruelty than justice in them.

Counsel relied on Halsbury’s Laws of England 4th Edition and the case of Mtana Lewa  vs  Kahindi Ngala Mwagandi (2015)eKLR to support this submission.

  1. Counsel relied on the provisions of Sections 4(4) and 7 of the Limitation of Actions Act and submitted that the plaintiff’s rights under the court order given in January 2004 were only valid for enforcement under Section 4(4) of the Limitation of Actions Act for up to 12 years.  That hence no action whatsoever can be brought upon the order after February 2016 being the end of twelve years from January 2004.  Relying on the case of Kenafric Bakery Limited vs National Land Commission & 2 others (ELC Case No 469 of 2016) (2022) KEELC 13800 (KLR)C3 October 2022), Counsel submitted that a suit that is filed out of time is statute barred and the cause of action is extinguished and rendered redundant and sterile.
  2. That Section 7 of the Limitation of Actions Act requires that an action to recover land or interests therefrom may only be brought within 12 years.  That the plaintiff’s interest in the suit land which crystalized from an order made more than 12 years ago is time barred.
  3. Counsel submitted that the suit is res judicata.  That the plaintiff ought to have enforced the order of the court in VIHIGA PMC MISC APPLICATION NO. 28 OF 1999 instead of filing a fresh suit. That the suit concerns the same piece of land, is between parties litigating under the same title and seeking the court to issue orders similar to the ones granted by the Land Tribunal and adopted by the court.
  4. I have considered the preliminary objection in light of the pleadings in the plaint and the submissions filed on behalf of the Defendant.  The preliminary objection raises points of law namely that the suit is res judicata and is time-barred by statute.  In determining whether the matters raised in the notice of preliminary objection herein constitute a preliminary objection, the court is guided by the decision in the case of  Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors Limited (1969)E.A 696 where it was held that;

“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion.”

And that;

“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit.”

  1. The basis of the objection ought to be clear from the pleadings filed.  Perusal of the paint reveals that the plaintiff’s claim is based on a judgment of the court in VIHIGA PMC   MISC APPLICATION NO. 28 OF 1999 dated 20th January 2004.  The plaintiff pleaded in paragraph 3 of the plaint as follows; -

“The plaintiff avers that sometimes in 1999 her late husband one JOHN ASUVA LISAKA sued the Defendants mother through Vihiga Land Dispute Tribunal and whose award was adopted as an order to the court through Vihiga PMC Misc Application No. 28 of 199 on the 20th day of January 1999.

  1. The Plaintiff’s complaint is that later the defendant succeeded the estate of the seller in the year 2019 and transmitted the suit land parcel No. SOUTH MARAGOLI/MAGUI/1 in his favour thereby depriving the estate of the deceased of the same.  The plaintiff therefore sought for orders that the title held by the defendant in respect of the suit land be cancelled and in its place, title be issued in favour of the plaintiff.  The plaintiff also sought for an order of permanent injunction restraining the defendant and his agents from interfering with the suit land.
  2. It is the plaintiff’s case in the plaint that the suit land was the subject of a former suit filed in the Land Disputes Tribunal under the law than in operation.  It is also the plaintiff’s case that the suit resulted in a judgment in favour of the plaintiff’s husband.  There is no evidence that the judgment has ever been set aside.  The judgement obtained pursuant to the provisions of the Land Disputes Tribunals Act, now repealed, is a valid judgement. Section 7 of the Land Disputes Tribunals Act provided that once judgement has been entered by the court in accordance with the decision of the Tribunal a decree shall issue and shall be enforceable in the manner provided for under the Civil Procedure Act. From the contents of the plaint what remained in the execution of the judgement was completion of the process of transferring the suit land in favour of the plaintiff’s husband.
  3. In the circumstances, a subsequent suit raising issues of ownership which were already decided and issues of execution of the same judgement would under section 7 of the Civil Procedure Act be res judicata. Section 7 provides that

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit which such issue has been subsequently raised and has been heard and finally decided by such court”

  1. It is clear from the plaint that the suit is between the personal representatives of the parties in the former suit, it concerns the same subject matter and raises issues of ownership. The plaintiff can have recourse in the former suit subject to limitation period and the Succession Cause vide which the suit land was transmitted to the Defendant.
  2. Section 4(4) of the limitation of Actions Act relied on by the Defendant relates to limitation of time for execution of judgments and decrees. The case herein is not an execution process but a fresh suit seeking the court to determine the issue of ownership of the suit land and make orders inter alia for cancellation of the title held by the Defendant. 
  3. Considering the pleadings in the plaint and particularly the fact that there exists a valid judgment in the former suit, I find that the suit is res judica. I further find that the preliminary objection has merit and uphold it with the result that the plaint is hereby struck out and the suit dismissed. Costs to the Defendant.

Orders accordingly.

Ruling, dated and signed at Kisumu, read virtually this 11th day of April, 2024 through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:

Patricia - Court Assistant.

No appearance for the Plaintiff.

Ochieng holding brief for Professor Mumma for the Defendant.

    HELLEN ENGESIA ASAVA VS STEPHEN SARAMBA VIRACHI HELLEN ENGESIA ASAVA VS STEPHEN SARAMBA VIRACHI