Kagua v Gachigi

High Court, at Nairobi

October 11, 1982

Potter Ag J

Civil Case No 1769 of 1980

Adverse possession - application of the doctrine of adverse possession - whether a claim of adverse possession is sustainable.

Trust - controlled land held in trust - creation of a trust in controlled land - whether consent of Land Control Board necessary.

The plaintiff sued the defendant for eviction stating that he (the plaintiff) was the registered proprietor of the suit land. The plaintiff had made an oral agreement with the defendant in 1967 for the sale of part of the land after which the defendant was allowed to occupy it. Further, a written agreement was made in 1976 in which the plaintiff acknowledged receipt of part of the purchase price. None of these agreements had the consent of the Land Control Board. Although Land Control Board forms were thereafter executed, the plaintiff failed to take the action necessary to get the consent. The defendant counterclaimed for an order directing the plaintiff to transfer the land to him and for a declaration that the plaintiff held the land in trust for him or that he was entitled to the land by virtue of the doctrine of adverse possession.

Held:

1. Both the verbal and the written agreements were void as they lacked the consent of the Land Control Board. As these agreements were void, the defendant could not rely on the contract.
2. Although the agreements were void, the fact that they were made was admissible to show that the defendant had been allowed onto the land with the consent of the vendor.
3. The creation of a trust is a controlled transaction for which Land Control Board consent has to be given, in the absence of such consent, no trust existed in favour of the defendant.
4. For a claim of adverse possession to succeed it is material that the person has to have been in exclusive possession for twelve years. The defendant was in possession for less than the requisite period.
5. In the absence of consent, the defendant is entitled to return of the money paid under the contract.

Judgment for the plaintiff.

Cases

Githuchi Farmers Co Ltd v Gichamba & Another [1973] EA 8 Approved & Applied

Statutes

Limitation of Actions Act (Cap 22) Section 13(2)

Gathoni v Kenya Co-operative Creameries Ltd

Court of Appeal, at Nairobi

January 30, 1982

 Potter JA

 Civil Application No NAI 22 of 1981

Limitation of actions - leave to file suit out of time - action not filed within limitation period - claim barred by statute - applicant under physical disability - nature and extent of disability not revealed - whether applicant entitled (without leave of the court) to bring action - meaning of disability under Section 2(2)(b) of the Limitation of Actions Act (Cap 22) - whether meaning of disability includes physical disability - applicant ignorant of material facts - meaning of ignorance of material facts under Section 27, Limitation of Actions Act - applicant failed to take all reasonable steps to obtain appropriate advice - whether the failure to take all reasonable steps is fatal to the application - meaning of appropriate advice under Section 30(5), Limitation of Actions Act.

The applicant suffered personal injuries when travelling in a vehicle which was involved in an accident. She did not file suit within the limitation period of three years. She made an application for leave to file the suit out of time on two grounds: disability as per Section 22 of the Limitation of Actions Act and, secondly, under Section 27 being that her failure to proceed in time was due to material facts of a decisive character being outside her knowledge, actual or constructive. This application was dismissed by the trial judge on the ground that she failed to take all reasonable steps to obtain appropriate advice. She appealed against the dismissal of the application.

Held:

1. “Disability” within the meaning of Section 22(v) of the Limitation of Actions Act (Cap 22) does not include physical disability. The definition of disability is clearly provided in Section 2(2) of the Act which refers to persons who are minors or are of unsound mind.
2. For an application for leave to be allowed under Section 27 of the Limitation of Actions Act, it must be shown, to the satisfaction of the court, that failure to apply within time was due to lack of knowledge of certain material facts. The applicant must show to the satisfaction of the court that she had taken all reasonable steps and sought appropriate advice in respect of the facts. Here the applicant failed to satisfy the court.
3. An applicant for leave under Section 27 must bring the action within one year of the cessation of the period during which the decisive material facts were outside his knowledge.
4. Appropriate advice under Section 30(5) means advice from a person qualified in the relevant area of the knowledge material to the suit.
5. (Obiter Potter JA) Where the applicant is under disability by reason of unsoundness of mind or minority, he would not be required to seek leave to commence the action. The question as to whether the applicant was under disability within the meaning of Section 27 may be raised as a preliminary issue at the trial.
6. (Obiter Potter JA) The law of limitation is intended to protect defendants against unreasonable delay in bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.

Appeal dismissed.

Cases

No case referred to.

Statutes

Limitation of Actions Act (Cap 22) Sections 2(2)(b), 22, 27, 30(3), 30(5)

Advocates

Mr Mirugi Kariuki for Applicant

Mehrunnissa v Mohamed Parvez (No 2)

Court of Appeal, Nairobi

28th June, 6th July 1979

Potter JA (in chambers)

Civil Application No NAI 5 of 1979

Time – extension of time limit – delay by Court - failure to obtain certificate of delay – Court of Appeal for East Africa Rules 1972, rules 4, 81.

Where delay is caused by the Courts, an applicant for an extension of time in which to appeal is not precluded from making an application under rule 4 of the Court of Appeal for East Africa Rules 1972 (provided that he can show “sufficient reason”) by reason of not having obtained a certificate of delay in accordance with the proviso to rule 81; but failure to obtain such a certificate may be penalised in costs thrown away.

Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838 and

Balwantrai D Bhatt v Tejwant Singh [1962] EA 497, applied.

Application

Mehrunnissa the daughter of the late Mohamed Shafi, applied to the Court of Appeal (Civil Application No NAI 5 of 1979) for leave to lodge an appeal against a ruling of Miller J in Mehrunnissa v Mohamed Parvez [1978] Kenya LR 168. The application was opposed by the respondent, Mohamed Parvez, the son of Mohamed Mawaz. The facts are set out in the judgment.

Cases referred to in judgment:

1. Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838, EACA.
2. Balwantrai D Bhatt v Tejwant Singh [1962] EA 497, EACA.

LP Ouna (instructed by Khaminwa & Khaminwa) for the Applicant.

YP Vohra (instructed by Vohra & Vohra) for the Respondent.