REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MIGORI
ELCLC NO. E001 OF 2023
NYAHIRI KARUNGA JAMES ………………………………………...…… 1ST PLAINTIFF
NYAHIRI NYAMESEGERE DISMAS ……………………..……………… 2ND PLAINTIFF
PETER MATIKO NYAHIRI ………………………………...……………… 3RD PLAINTIFF
PAUL MUHINDI NYAHIRI …………………………………...…………… 4TH PLAINTIFF
PHANUEL MATIKO NYAHIRI …………………………………………… 5TH PLAINTIFF
ANISON NYAHIRI MUHINDI ……………………………..……………… 6TH PLAINTIFF
VERSUS
NDIMBA GIMUNGAYA MOTATIRO …………………...……………… 1ST DEFENDANT
ROBI NDIMBA GIMUNGAYA ………………………………………….. 2ND DEFENDANT
RULING
(Application for orders to extend time for filing a claim on land; whether court can extend the time for filing claim on land; no provision for extension of time to file a claim on land; application dismissed) 1. The application before me is that dated 15 January 2024 filed by the defendants. What they seek is an order to extend time for filing a counterclaim, and that the counterclaim filed on 7 August 2023, be deemed to have been filed within time. The applicants had previously filed a Miscellaneous Application No. E21 of 2023 dated 30 June 2023, before the Chief Magistrates’ Court Migori, seeking an order for leave to file suit out of time. In that application, the applicants had averred that their father, one Gimungaya Motatiro inherited some land from his father registered as Bukira/Bwisaboka/229 measuring 20.0 Ha. It was averred that when they went to file succession in 2022, they found that this land had become subdivided into two portions in the year 1976-1977 as per the mutation though this was not reflected in the Green Card. One portion, measuring 3.5 Ha was registered in name of the plaintiff. They averred that at the time they discovered the fraud, the time for filing suit for recovery of the land had long lapsed. It was deposed that the fraud was committed some time in 1970s and it was outside their knowledge and they only discovered it in the year 2022.
2. On 10 July 2023, while that application was pending, this suit was filed by the plaintiffs where they sued Ndimba Gimungaya Motatiro and Robi Ndimba Gimungaya as defendants. In the plaint, it is pleaded that the 1st – 5th plaintiffs are sons and heirs of the 6th plaintiff from whom they inherited the land parcel Bukira/Bwisaboka/11231 measuring 3.425 Ha in the year 2022. That property is said to be a subdivision of the land parcel Bukira/Bwisaboka/828 which is said to have been ancestral land under the proprietorship of the 6th plaintiff. They pleaded that they had been in quiet possession until May 2023 when the defendants started threatening them. In the suit they asked for orders for a declaration that they own the suit land; a permanent injunction to restrain the defendants from it; an order of mandamus to compel the District Land Registrar to remove a caution placed in the register of the suit land; and costs.
3. On 7 August 2023, the applicants filed defence and counterclaim. They pleaded that the 6th plaintiff registered the suit land in name of the 1st – 5th plaintiffs in 2022 when he realized that the defendants have discovered that he illegally caused a portion of 3.5 Ha to be hived of the land parcel No.828. They pleaded that unknown to the father of the 1st defendant, the 6th plaintiff excised this portion of 3.5 Ha by subdividing the land parcel No. 229 into two registered as land parcels No. 828 and 829. They lodged a counterclaim suing the plaintiffs and two others i.e Simeon Chacha Mahende and the Attorney General as defendants to that counterclaim. The counterclaim is to the effect that on 28 May 1973 Gimungaya Matatiro was registered as sole proprietor of the land parcel No. 229 measuring 20 Ha and he did not sell or transfer any portion of it until he died on 21 February 1993. It is averred that they wished to file succession for the late Gimungaya Matatiro on 2 May 2023 and they found that the land parcel No. 229 had been subdivided in January 1977 to parcels No. 827 and 828 respectively measuring 16.5 Ha and 3.5 Ha. The 1st defendant to the counterclaim then subdivided the parcel No. 828 into the parcels No. 11231-11233 respectively in names of the 3rd – 6th defendants in the counterclaim, the 2nd defendant in the counterclaim, and the Catholic Diocese of Homa Bay. In the counterclaim, they seek orders that the subdivision of the land parcel No. 229 was illegal; rectification of the register to delete the entries No. 827 and 828, and the further subdivisions No. 11231 -11233, and reinstate the parcel No. 229 in name of Gimungaya Motatiro; an order for 0.16 Ha to thereafter be excised and be registered in name of Catholic Diocese of Homa Bay; eviction of the defendants to the counterclaim save for the 0.16 Ha occupied by the Catholic Church; a permanent injunction against the defendants to the counterclaim, general damages and costs.
4. From this application, according to the defendants/applicants, they believe that their counterclaim is out of time, hence the application that it be allowed out of time.
5. I will not go to the merits or demerits of the suit and/or counterclaim. I will not even go into whether or not the suit and/or counterclaim are out of time. I will restrict myself to answering the question whether in suits for recovery of land, one can seek an extension of time, so that he may be able to file suit outside the limitation period.
6. Limitation periods are prescribed in the Limitation of Actions Act, Cap 22. There are various periods of limitations depending on the cause of action. For example under Section 4 (1) (a) the cause of action for contracts has a limitation period of 6 years. For general tort, the cause of action has a limitation period of 3 years whereas the tort of defamation has a limitation period of 1 year as prescribed in Section 4 (2) of the Limitation of Actions Act. For recovery of land, the limitation period under Section 7 is 12 years.
7. What about extension of the above limitation periods ? This is prescribed in Part III of the Limitation of Actions Act, and I pray to be pardoned for copying the whole of Part III. It provides as follows :
Part III – EXTENSION OF PERIODS OF LIMITATION
A – Disability
22. Extension of limitation period in case of disability
If, on the date when a right of action accrues for which a period of limitation is prescribed by this Act, the person to whom it accrues is under a disability, the action may be brought at any time before the end of six years from the date when the person ceases to be under a disability or dies, whichever event first occurs, notwithstanding that the prescribed period of limitation has expired:Provided that—
(i)this section does not affect any case where the right of action first accrues to a person who is not under a disability and through whom the person under a disability claims;
(ii)when a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under disability, no further extension of time is allowed by reason of the disability of the second person;
(iii)an action to recover land or to recover money secured on a mortgage of land may not be brought by a person by virtue of this section after the end of thirty years from the date on which the right of action accrued to that person or to some person through whom he claims;
(iv)this section does not apply to an action to recover a penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law;
(v)in actions for damages for tort—
(a)this section does not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of his parent; and
(b)this section has effect as if the words "six years" were replaced by the words "three years".
B – Acknowledgement and Part Payment
23. Fresh accrual of right of action on acknowledgement or part payment
(1)Where—
(a)a right of action (including a foreclosure action) to recover land; or
(b)a right of a mortgagee of movable property to bring a foreclosure action in respect of the property, has accrued, and—
(i)the person in possession of the land or movable property acknowledges the title of the person to whom the right of action has accrued; or
(ii)in the case of a foreclosure or other action by a mortgagee, the person in possession of the land or movable property or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest, the right accrues on and not before the date of the acknowledgement or payment.
(2)Where a mortgagee is, by virtue of the mortgage, in possession of any mortgaged land and either receives any sum in respect of the principal or interest of the mortgage debt or acknowledges the titles of the mortgagor, or his equity of redemption, an action to redeem the land in his possession may be brought at any time before the end of twelve years from the date of the payment or acknowledgement.
(3)Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to movable property of a deceased person, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment:Provided that a payment of a part of the rent or interest due at any time does not extend the period for claiming the remainder then due, but a payment of interest is treated as a payment in respect of the principal debt.
24. Formalities as to acknowledgements and part payments
(1)Every acknowledgement of the kind mentioned in section 23 of this Act must be in writing and signed by the person making it.
(2)The acknowledgement or payment mentioned in section 23 of this Act is one made to the person, or to an agent of the person, whose title or claim is being acknowledged, or in respect of whose claim the payment is being made, as the case may be, and it may be made by the agent of the person by whom it is required by that section to be made.
25. Effect of acknowledgement or part payment on person other than maker or recipient
(1)An acknowledgement of the title to any land or mortgaged movable property, by any person in possession thereof, binds all other persons in possession during the ensuing period of limitation.
(2)A payment in respect of a mortgage debt by the mortgagor or any person in possession of the mortgaged property, so far as any right of the mortgagee to foreclose or otherwise recover the property is concerned, binds all other persons in possession of the mortgaged property during the ensuing period of limitation.
(3)Where two or more mortgagees are by virtue of the mortgage in possession of the mortgaged land—
(a)an acknowledgement of the mortgagor’s title or of his equity of redemption by one of the mortgagees binds only him and his successors, and does not bind any other mortgagee or his successors; and
(b)where the mortgagee by whom the acknowledgement is given is entitled to a part of the mortgaged land and not to any ascertained part of the mortgage debt, the mortgagor is entitled to redeem that part of the land upon paying that part of the mortgage debt which bears the same proportion to the whole of the debt as the value of the part of the land bears to the value of the whole of the mortgaged land, together with interest.
(4)Where there are two or more mortgagors, and the title or right to redemption of one of the mortgagors is acknowledged as aforesaid, the acknowledgement is taken to have been made to all the mortgagors.
(5)An acknowledgement of a debt or other liquidated pecuniary claim binds the acknowledgor and his successors but not any other person.
(6)A payment made in respect of a debt or other liquidated pecuniary claim binds all persons liable in respect of the debt:Provided that a payment made after the expiration of the period of limitation prescribed for an action to recover the debt or other claim does not bind any person other than the person making the payment and his successors.
(7)An acknowledgement by one of several personal representatives of a claim to movable property of a deceased person, or a payment by one of several personal representatives in respect of any such claim, binds the estate of the deceased person.
(8)In this section, "successor", in relation to a mortgagee or a person liable in respect of a debt or claim, means his personal representative and any other person on whom the rights under the mortgage or, as the case may be, the liability in respect of the debt or claim devolve, whether on death or bankruptcy or the disposition of property or the determination of a limited estate or otherwise.
C – Fraud, Mistake and Ignorance of Material Facts
26. Extension of limitation period in case of fraud or mistake
Where, in the case of an action for which a period of limitation is prescribed, either—
(a)the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or
(b)the right of action is concealed by the fraud of any such person as aforesaid; or
(c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:
Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—
(i)in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or
(ii)in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.
27. Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.
(1)Section 4(2) does not afford a defence to an action founded on tort where—
(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and
(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and
(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and
(d)the requirements of subsection (2) are fulfilled in relation to the cause of action.
(2)The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which—
(a)either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and
(b)in either case, was a date not earlier than one year before the date on which the action was brought.
(3)This section does not exclude or otherwise affect—
(a)any defence which, in an action to which this section applies, may be available by virtue of any written law other than section 4(2) of this Act (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; or
(b)the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.[L.N. 228/1973, Sch.]
28. Application for leave of court under section 27
(1)An application for the leave of the court for the purposes of section 27 of this Act shall be made ex parte, except insofar as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action.
(2)Where such an application is made before the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would in the absence of any evidence to the contrary, be sufficient—
(a)to establish that cause of action, apart from any defence under section 4(2) of this Act; and
(b)to fulfil the requirements of section 27(2) of this Act in relation to that cause of action.
(3)Where such an application is made after the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence would in the absence of any evidence to the contrary, be sufficient—
(a)to establish that cause of action, apart from any defence under section 4(2) of this Act; and
(b)to fulfil the requirements of section 27(2) of this Act in relation to that cause of action,
and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from section 27 of this Act) to afford a defence under section 4(2) of this Act.
(4)In this section, "relevant action" in relation to an application for the leave of the court, means any action in connexion with which the leave sought by the application is required.
(5)In this section and in section 27 of this Act "court", in relation to an action, means the court in which the action has been or is intended to be brought.
29. Provision where injured person has died
(1)In relation to an action to which section 27 of this Act applies, being an action in respect of one or more causes of action surviving for the benefit of the estate of a deceased person by virtue of section 2 of the Law Reform Act (Cap. 26), section 27 of this Act and section 28 of this Act shall have effect subject to subsections (4) and (5) of this section.
(2)Subsections (1), (2) and (3) of section 27 of this Act and section 28 of this Act shall have effect, subject to subsections (4) and (6) of this section, in relation to an action brought under the Fatal Accidents Act (Cap. 32) for damages in respect of a person’s death, as they have effect in relation to an action to which section 27 of this Act applies.
(3)In the following provisions of this section, and in sections 27 and 28 as modified by those provisions, "the deceased" means the person referred to in subsection (1) or subsection (2), as the case may be.
(4)Section 27(1) of this Act shall not have effect in relation to an action falling within subsection (1) or subsection (2) of this Act, unless the action is brought before the end of twelve months from the date on which the deceased died.
(5)For the purposes of the application of subsection (2) of section 27 of this Act to an action falling within subsection (1) or subsection (2) of this section—
(a)any reference in the said subsection (2) to the plaintiff shall be construed as a reference to the deceased; and
(b)the requirements of the said subsection (2) shall be taken to be fulfilled in relation to a cause of action if either the matters specified in that subsection (as modified by paragraph (a) of this subsection) are proved or it is proved that the material facts relating to that cause of action were or included facts of a decisive character which at all times until his death were outside the knowledge (actual or constructive) of the deceased, and any reference to the requirements of the said subsection (2) shall, in relation to an action falling within subsection (1) or subsection (2) of this section, be construed as a reference to the requirements of the said subsection (2) as modified by this subsection.
(6)In the application of sections 27, 28 and 29 of this Act to an action brought under the Fatal Accidents Act (Cap. 32)—
(a)any reference to a cause of action to which an action relates shall be construed as a reference to a cause of action in respect of which it is claimed that the deceased could (but for his death) have maintained an action and recovered damages; and
(b)any reference to a cause of action shall be construed as a reference to establishing that the deceased could (but for his death) have maintained an action and recovered damages in respect thereof.
30. Interpretation of sections 27, 28 and 29
(1)In sections 27, 28 and 29 of this Act, any reference to the material facts relating to a cause of action is a reference to one or more of the following—
(a)the fact that personal injuries resulting from the negligence, nuisance or breach of duty constituting that cause of action;
(b)the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;
(c)the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.
(2)For the purposes of sections 27, 28 and 29 of this Act any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice with respect to them, would have regarded at that time as determining, in relation to that cause of action, that (apart from section 4(2) of this Act) an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.
(3)Subject to subsection (4) of this section, for the purpose of sections 27, 28 and 29 of this Act a fact shall be taken at any particular time, to have been outside the knowledge (actual or constructive) of a person, if, but only if—
(a)he did not know that fact; and
(b)in so far as that fact was capable of being ascertained by him, he had taken all such steps (if any) as it was reasonable for him to have taken before that time for the purpose ascertaining it; and
(c)in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such steps (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances.
(4)In the application of subsection (3) of this section to a person at a time when he was under a disability and was in the custody of a parent, a reference to that person in paragraph (a), paragraph (b) or paragraph (c) of that subsection shall be construed as a reference to that parent.
(5)In this section, "appropriate advice" in relation to any fact or circumstances, means the advice of a competent person qualified, in their respective spheres, to advise on the medical, legal or other aspects of that fact or those circumstances, as the case may be.
31. Part to apply to other laws of limitation
Where a period of limitation is prescribed for any action or arbitration by any other written law, that written law shall be construed as if Part III of this Act were incorporated in it.
8. I have copied the whole of Part III of the Limitation of Actions Act so that there is no doubt regarding periods of limitation and extensions thereof. It is for one to discern for themselves whether or not the law permits their cause of action outside the prescribed periods of limitation. When it comes to leave of court for extension of limitation periods, it will be observed by a reading of Sections 27 and 28 that this is restricted to cases of negligence, i.e an extension of time for one to file suit for a case of negligence outside the 3 year limitation period prescribed in Section 4 of the Limitation of Actions Act.
9. There is no provision for a court to extend limitation periods for suits for recovery of land. It is for one to see if he benefits from extension of the prescribed limitation periods pursuant to Part III of the Limitation of Actions Act. In other words you can only benefit by operation of law not by an extension of time by the court. It is not for the court to extend that period, save, as I have pointed out above, in cases of negligence where one fulfills the criteria for extension.
10. Indeed, in so far as recovery of land is concerned, an extension of time by court cannot happen as this would go against other rights that accrue over time to other people such as rights of prescription including adverse possession. In other words, as one’s right over land is being whittled away by limitation, somebody else’s right is being bolstered by the passage of time. For example under Section 17 of the Limitation of Actions Act, the title of a land holder is extinguished if he does not bring an action within the limitation period of 12 years prescribed in Section 7 of the Act. Such title holder cannot now come to court to ask for an extension of the limitation period to recover land, for on the flipside, there is somebody else who is benefiting from the title of the proprietor being extinguished and who acquires rights because the title holder has not taken any action against him.
11. In his submissions, Mr. G.S Okoth for the applicants urged that he relied on Section 26 of the Limitation of Actions Act. If Section 26 favours his clients, that is well and good, and it will emerge at the hearing of the case. But as I have taken acres to explain, it is not for a court to make an order upon an application that the limitation period is extended pursuant to Section 26. One either fits himself to the requirements of the law which allows for extension of time or fails to do so. It does not call for the intervention of court upon an application.
12. I am afraid to inform the applicants that there is no provision in law for this court to extend any right barred by limitation as far as it concerns issues relating to title to land. It is up to the applicants to see if they benefit from the extensions of time prescribed in Part III of the Limitation of Actions Act while they conduct their case, but it is not for the court to intervene and extend the period.
13. From the foregoing, it will be seen that I find no merit in this application and it is hereby dismissed with costs.
14. Orders accordingly.
DATED AND DELIVERED THIS 7 DAY OF NOVEMBER 2024
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT MIGORI
Delivered in the presence of :
Mr. G.S Okoth for the defendants/applicants
Mr. Amwayi h/b for Mr. Marowa for the plaintiffs/respondents
Court Assistant : Tom Otieno