Regina Wahu Muigai v Housing Finance Company (K) Ltd & 2 others

High Court, at Nairobi October 3, 2003

Ombija J

Civil Suit No 1882 of 2001

Limitation of Actions – suit on mortgages - proceedings brought under the Government Lands Act (Cap 280) to be brought within one year after cause of action arises – notice to issue to defendant one month before commencement of action – plaint barred by Limitation of Actions Act.

By a plaint dated 11th December 2001, the plaintiff filed suit against the defendants for a declaration that certain dealings with her parcels of land were illegal, null and void. The third defendant by a notice of preliminary objection urged the Court to dismiss the suit on the ground that it was time barred by the provisions of section 136 of the Government Lands

Act (cap 280) having been filed long after twelve months since the cause of action accrued.

Held:

1. A plaint barred by limitation is barred by law and must be rejected.

2. A suit filed in contravention of the Government Lands Act (cap 280) is a nullity. The Limitation of Actions Act recognises that other periods of limitation can be prescribed by other Acts of Parliament and the Government Lands Act is not ousted by section 37 of the Limitation of Actions Act.

3. The time when the cause of action arises is determined by the knowledge of the facts constituting the cause of action.

4. The suit should have been filed 12 months after the registration of the charge or 12 months after demand was made by the chargee or 12 months after the 1st defendant breached the contract by selling the property by a Public Auction.

Suit dismissed with costs

Cases

1. Mukisa Buscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696

2. Iga v Makerere University [1972] EA 65

3. Vijay, Morjaria v Nansingh Madhusingh Barbar & another Civil Appeal No 106 of 2000

4. Kiprono, Langat v Kenya Ports and Telecommunication Corporation Civil Appeal No 144 of 1999

5. Dipple v Dipple [1942] 1 All ER 234; 166 LT 120; [1942] P 65

Statutes

1. Indian Transfer of Property Act 1882 section 69

2. Government Lands Act (cap 280) sections 4, 37, 136, 136(2)

3. Limitation of Actions Act (cap 22) section 26, 31

4. Auctioneers Act (cap 526) section 15

Advocates

Mr Kimani for 1st and 2nd Defendants

Paula Waheti Muchina v Henry Wanjohi Muchina
Court of Appeal, at Nakuru October 1, 2003
Waki JA
Civil Application No NAI 178 of 2003
(An application for extension of time to file and serve Notice of Appeal
and Record of Appeal from the Judgment of the High Court at
Nakuru (Tanui, J) dated 18th June, 1992 in HCCC No 499 of 1990)

Civil Practice and Procedure – extension of time – to serve Notice of Appeal and Record of Appeal – where delay has been for 10 years – ignorance pleaded by appellant as reason for delay – mistake of advocate - intended appeal touching on matters of land - whether proper to grant extension of time.

Paula sued Henry, her step-brother, at the High Court claiming that he held their family’s land in trust for her. Henry denied this stating that he had bought the land from their father and that no trust existed. The High

Court agreed with him and dismissed Paula’s case with costs. 10 years after this dismissal she filed a Notice of Motion seeking extension of time to file an appeal. This was after Henry had sought to recover the costs of his suit and obtained orders for Paula’s committal to civil jail in default of payment. She pleaded ignorance of the law as to restriction of time. She however argued that the matters in question involved weighty issues of law and therefore the application should be allowed.

Held:

1. Ignorance of the law cannot amount to a defence.

2. Matters of land involve weighty issues of law. The appellant should therefore not suffer due to the negligence and slovenliness of her advocate.

3. Justice would therefore be enhanced when both parties knew with finality from the highest court in the land whether or not a trust existed in the disputed parcel of land.

Application allowed.

Cases

1. Igweta, Major Joseph Mweteri v Mukira M’Ethare & another Civil Application No NAI 8 of 2000

2. Mbogo & another v Mbuti Ngugi Civil Application No NAI 340 of 1996

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 4

Advocates

Mrs Odhiambo for the Applicant.

Mr Gethi for the Respondent.