Samuel Ngugi Nganga v Elena Chepkurgat Kiptalam [2019] KEELC 3975 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

ELC NO. 26 OF 2017

SAMUEL NGUGI NGANGA................................................PLAINTIFF

VERSUS

ELENA CHEPKURGAT KIPTALAM

(SUING AS THE LEGAL ADMINISTRATRIC OF THE ESTATE OF

KIPTALAM ARAP KOGO (DECEASED)......................DEFENDANT

RULING

1. By way of preliminary objection dated 29/1/2019 the defendant challenged the entire suit herein on the ground that the suit being one for the recovery of land is statutorily barred by provision of Section 7 of the Limitation of the Actions Act.  On 30/1/2019 this court ordered the parties to file submissions on that preliminary objection.

2. The defendant filed submissions on 31/1/2019 and in support of the preliminary objection. He reiterates the contents of the preliminary objection and replicates the contents ofSection 7 of the Limitation of the Actions Actand by reference to the pleadings and other documents in court avers that this suit cannot survive and its defects cannot be cured byArticle 159 (2) (d)

3. The plaintiff filed submission in opposition to the defendant’s preliminary objection on 6/2/2019.

4. The defendant cited Nairobi Civil Appeal No. 304/1997where the Court of Appeal found that time period required for adverse possession cannot run as against the Settlement Fund Trustees. He avers that the land subject matter herein became a property of Settlement Fund Trustee which is an arm of the government, in 2006 and the defendant was registered as owner of the suit land in 2016. He avers that the plaintiff has been occupying 2 acres exclusively and with the knowledge of the defendant and her late husband and the Plot No. Maridadi 315 whose register closed on subdivision gave rise to Malidadi/Kosprin/318 and 302. Title no. 381 is a product of subdivision of Title No. 315 which was registered in the name of the defendant in 2016 three years before the institution of the suit.

5. I have examined the plaint and I do not find any claim under adverse possession, which is the subject matter of the preliminary objection at hand.

6. It is the correct position that the land was registered in the name of the Settlement Fund Trustees until the year 2016 when it was registered in the name of Kiptalam arap Kogo. As correctly observed by the plaintiff’s counsel on the basis of the decision in Nairobi Civil Appeal No. 304/1997 Samuel Ndungu Gitu Vs Danson Ndungu and 2 Others,the law on limitation can not run as against the Settlement Fund Trustees.

7. The period between the date of the registration of the deceased as the proprietor of the land and the date of filing of this suit is about one year. Clearly this suit is not time barred.

8. The preliminary objection dated 29th January 2019 is therefore dismissed with costs.

Dated, signedand deliveredatKitale on this 26th day ofMarch, 2019.

MWANGI NJOROGE

JUDGE

26/03/2019

Coram:

Before - Hon. Mwangi Njoroge, Judge

Court Assistant - Picoty

Mr. Lowasikou holding brief for Teti for defendant

N/A for plaintiff

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

26/03/2019