[2017] KEELC 1908 (KLR)
The court held that the preliminary objection could not be sustained because the issue of when the Plaintiff discovered the alleged fraud is a factual matter that requires evidence. Since the Plaintiff's claim is based on fraud, the limitation period under section 7 of the Limitation of Actions Act is subject to the...
Source-derived case information.
- Citation
- [2017] KEELC 1908 (KLR)
- Parties
- Plaintiff: Francis Muchangi; Defendant: Lucky Summer Estate Limited; Defendant: Mary Nyakio
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1051 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation of Actions
- Outcome
- preliminary objection dismissed
- Judges
- AK Bor
- Legal Topics
- Limitation of Actions, Fraud in Land Transactions, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Muchangi
Plaintiff
Lucky Summer Estate Limited
Defendant
Mary Nyakio
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Limitation of Actions
Legal Issues
- 1 Whether the suit is statute barred under section 7 of the Limitation of Actions Act.
- 2 Whether the preliminary objection raises a pure point of law suitable for determination at this stage.
- 3 Whether the alleged fraud affects the computation of limitation period.
Ratio Decidendi
The court held that the preliminary objection could not be sustained because the issue of when the Plaintiff discovered the alleged fraud is a factual matter that requires evidence. Since the Plaintiff's claim is based on fraud, the limitation period under section 7 of the Limitation of Actions Act is subject to the proviso in section 26, which delays the running of time until the fraud is discovered or could have been discovered with reasonable diligence. As such, the question of limitation cannot be determined as a pure point of law at this stage, and the suit should proceed to hearing for evidence to be adduced on the issue.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the Plaintiff.
- The Plaintiff is directed to fix the case for hearing forthwith.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 1051 OF 2014 (FORMERLY NAIROBI HCC NO. 129 OF 2007
FRANCIS MUCHANGI................................................PLAINTIFF
VERSUS
LUCKY SUMMER ESTATE LIMITED.............1ST DEFENDANT
MARY NYAKIO…………………………....…2ND DEFENDANT
RULING
The Plaintiff filed suit on 8/2/2007 seeking a declaration that he is the lawful owner of plot no. 84 in Embakasi now known as L.R. No. Nairobi/Block 113/229 (“the Suit Property”) having bought this from the 1st Defendant when he bought shares in that company and was issued with a share certificate. The Plaintiff claims to have bought the shares from the 1st Defendant on 9/11/1984. He pleads fraud against both Defendants and that the 1st Defendant fraudulently purported to allot the suit property to the 2nd Defendant knowing very well that it had already sold it to the Plaintiff.
The 1st Defendant contends at paragraph 5 of the defence that the suit is statute barred since a claim for land ought to be filed within 12 years of the date the cause of action arose. This was taken up as a preliminary point before the case could proceed for hearing.
Parties filed written submissions.
Section 7 of the Limitation of Actions Act stipulates that a suit to recover land ought to be filed within 12 years from the date the cause of action arose. The proviso to section 26 of the Limitation of Actions Act provides that where an action is based on fraud, time starts running when the Plaintiff discovers the fraud or when he could have diligently discovered it.
The court has considered the submissions made by counsels. A preliminary objection should raise a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained. (See Mukisa Biscuits Manufacturing Company Ltd V. West End Distributors Ltd (1969) EA 696)
The court has looked at the Plaintiffs bundle of documents and notes that there is a letter dated 21/7/2003 which informed the Plaintiff that he was required to accept the conditions of the grant from the Commissioner of Lands and to pay the requisite fees to facilitate issuance of a grant over the Suit Property to him.
The court is not satisfied that the preliminary objection is merited. Parties need to lead evidence at the hearing on when the Plaintiff learnt of the fraud he alleges in the allocation of the Suit Property so that the court can establish when time started running for purposes of computing time under the Limitation of Actions Act.
The preliminary objection is dismissed with costs to the Plaintiff.
This is an old suit filed in 2007 which ought to be heard and determined without further delay. The Plaintiff is directed to fix the case for hearing forthwith.
Dated and delivered at Nairobi this 19th day of September 2017
K. BOR
JUDGE
In the presence of: -
Mr. Asiimwe for the Plaintiff
No appearance for the Defendants
Mr. V. Owuor- Court Assistant