Joseph Sombo Said v Margaret Wanjeri Ndungu [2016] KEELC 1214 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

ENVIRONMENT AND LAND COURT

ELC  CIVIL SUIT NO. 254 OF 2013

JOSEPH SOMBO SAID..........................................................PLAINTIFF

-VERSUS-

MARGARET WANJERI NDUNGU.............................................DEFENDANT

RULING

The plaintiff sued the defendant seeking two prayers one of which is an order directing the land registrar Kwale to correct the anormaly and revert the stolen acreage to the  plaintiff.  The second prayer was for injunction to be issued against the defendant to restrain him from interferring with the plaintiff's parcel of land Kwale/Mwanguda/1128.

The defendant filed her defence to the suit and a counter – claim seeking a permanent injunction to issue against the plaintiff restraining him from interfering with her plot No Kwale/Mwanguda/1140.  Thereafter on 23rd March 2015 the defendant filed a notice of preliminary objection on the ground that the suit is time barred.

The defendant filed written submissions to argue the objection.  The plaintiff did not file any.  The defendant submits that the cause of action arose on the 11th June 1997.  It is her argument that the suit ought to have been filed before the lapse of 12 years which was on 11th June 2007.  She relied on the provisions of section 7 and 9 of the limitation of Actions Act.

An reading of the plaintiff's pleadings reveals two claims.  First is a prayer for rectification of the register as he is accusing the defendant of engaging in fraud.  The second prayer is for a permanent injunction from interferring with his plot.  If there was no prayer for injunction then I would have considered whether the suit is time barred.  Once the prayer for injunction is introduced then the entire suit cannot be argued to be time barred as there is no time barrier set for making such a claim.

In any event, the defendant also made a prayer in the  counter – claim. Therefore the suit will have to proceed to a full hearing.  The principle of striking out suits is that a suit should only be struck out in the clearest of cases.  The instant suit does not meet such criteria as I can only strike out a part of the prayers if found to be time barred and proceed to hear part of the suit on injunction.

Consequently I find no merit in the preliminary objection raised and hereby dismiss it with no costs as the plaintiff did not present any arguments to oppose the objection.

In light of the new amendments to the Magistrate's Court Act, specifically section 7 (3) which became operational on 2. 1.2016  this Court own its motion hereby immediately transfer this matter to Kwale Principal Magistrate’s Court for hearing and determination.

Ruling  Dated  and Delivered  in  Mombasa  this  12th day  of  February  2016

A. OMOLLO

JUDGE