Kamongo Farmers Co-operative Society Ltd v Chief Land Registar & 9 others [2018] KEELC 3819 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAROK

ELC CAUSE NO 298 OF 2017

KAMONGO FARMERS CO-OPERATIVE SOCIETY LTD...PLAINTIFF

-VERSUS-

CHIEF LAND REGISTAR & 9 OTHERS............................DEFENDANTS

RULING

The 5th Respondent has by a Notice of Preliminary Objection stated that the claim against him is bad in law and misconceived and prayed that the suit as relates to him should be dismissed with costs.

When the Notice came up for hearing the parties consented that the Application be disposed of by way of written submissions. The 5th Respondent who raised the objection had filed his submissions but the Plaintiff despite having been given the chance have failed to file their submissions on the preliminary objection on points of law.

The 5th Respondent contended that the claim against him related to recovery of land which is statutoraly time barred.  He relied on the provisions of section 7 of the limitations of Actions Act and section 26 of the same Act.

The 5th Defendant contends that the claim against him is alleged to be that he exhibited professional negligence which gave rise to the case.  He states that the plaintiff contends that the said negligence occurred in 1996 and that a claim based on negligence can’t be brought after the lapse of 3 years and therefore the suit is statutorily time bared.

I have read the Notice of Preliminary Objection and submissions filed by the 5th Defendant as stated before the court and not have the benefit of reading any submission by the plaintiff.

Section 7 of the Limitation of Actions act provides:-

“An action may not be brought by any person to recover any land after the end of 12 years from the date when the cause of action accrued”.

In the instant case the cause of action which is albeit that of professional negligence lapsed in 1999.

The effect of delay in bringing suit as stated in the court of Appeal in CIVIL APPEAL NO. 142 OF 2016 CMW -VERSUS- JPM where the Appellant lost a claim in matrimonial property on ground that she brought the claim after a long time and the court found no merit in the appeal.

In RAWAL -VERSUS- RAWAL 1990 KLR 275 BOSIRE J as he then was stated that:-

“The object of any limitation enactment is to prevent a plaintiff from prosecuting state claims on the one hand and to protect a defendant being disturbed after a long lapse of time. It is not to extinguish claims”.

The delay in bringing the claim against the Defendant was inordinate and in any event the plaintiff can get remedy elsewhere where the same is based on a professional negligence such as the 5th Defendant.

In view of the above I find that the suit herein as against the 5th defendant is time barred and I therefore uphold the preliminary objection on the ground of limitation and I thus struck out the suit against the 5th Defendant with costs.

DATED, SIGNED and DELIVERED in open court at NAROK on this 11th day of APRIL, 2018

MOHAMMED NOOR KULLOW

JUDGE

11/4/2018

In the presence of:

CA:Chuma

Ms Cheptoo holding brief for Mr Kibue for the 5th Defendant

N/A for the Applicant

MOHAMMED NOOR KULLOW

JUDGE

11/4/2018