[2009] KEHC 1874 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CIVIL CASE 132 OF 2002

JOHN NTUTUMI M’IBUURI .........................................................................PLAINTIFF

VERSUS

JAMES KINOTI M’IBURI .................................................................. 1ST DEFENDANT

THE LAND ADJUDICATION & SETTLEMENT OFFICER

MERU CENTRAL DISTRICT............................................................2ND DEFENDANT

THE LAND REGISTRARMERU CENTRAL DISTRICT ..............3RD DEFENDANT

THE ATTORNEY GENERAL .............................................................4TH DEFENDANT

RULING

When this case came up for hearing, the court requested the defendant to first argue the preliminary objection intimated in paragraph 12 of the defence. That preliminary objection was to the effect that the plaintiff’s claim is time barred by virtue of the provisions of the Limitation of Actions Act Cap 22. The plaintiff by his plaint stated that in 1977 the first defendant acting in cahoots with the second defendant fraudulently and without any colour or right purported to register forged transfer letter executed by the first defendant hiving off the plaintiff’s 7 acres in land parcel No. 97 GIAKI Land Adjudication Section. The defendant in advancing the preliminary objection argued that the plaintiff’s claim by virtue of Section 7 of the Limitations of Actions Act was time barred. That section provides:-

“7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person”.

The defence argued that the course of action having arisen in 1977 and the plaint having been filed on 18th July 2002 the period of limitation of 12 years had well been exceeded. The defendant sought to rely on Halsbury’s Laws of England. In respect of the application of Limitation of Action Act, the book stated as follows:-

“The Limitation Act 1980 prescribes a normal limitation period of 12 years from the date on which the right of action accrued for actions for the recovery of land, with longer periods in a number of special cases.”

The defendant sought to rely on two other cases which in my view are not relevant to the matter before us. The defendant did concede that if the plaintiff’s case fell within the exceptions of section 20, 22 and 26 of the Limitation of Actions Act, the plaintiff’s action would not be caught by the limitation period. In the defendants view however, the plaintiff’s case did not fall within those exceptions. The defendant further argued that the plaintiff ought to have proceeded through the mechanism set out under section 26 of the Land Adjudication Act Cap 284. That submissions went beyond the preliminary objection that the defendant had raised. However, since it is a point of law, my response to it is that it is not an issue that can be raised by way of preliminary objection because it will entail in the court considering evidence which is not part of the pleadings herein. That argument therefore is rejected. The plaintiff’s counsel in his response stated that the plaintiff’s claim was filed pursuant to a court order issued on 4th July 2002. Counsel said that leave had been granted to file the action out of time. He did however concede that the body of the plaint had not pleaded that such leave had been granted. With his argument in mind, counsel relied on the case of Oruta & Ano. V. Nyamato(1988) KLR. In that case, the Court of Appeal held that leave granted to file a suit out of time could only be queried at the trial and not by an application. In my view, since the plaintiff’s claim lies in his allegation of fraud against the defendant, his case does fall under the exceptions of Section 26 of the Limitation of Actions Act. That section provides:-

“Where in the case of an action for which a period of limitation is prescribed, either-

a.The action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or

b.The right of action is concealed by the fraud of any such person as aforesaid; or

c.The action is for relief from the consequences of a mistake. The period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it”.

Where the plaintiff’s action is based on fraud of the defendant as in this case, the limitation period will be postponed until when the plaintiff discovers the fraud. For that reason, this court’s ruling is that the preliminary objection raised by the defendant must fail because the plaintiff’s claim alleges fraud against the defendant. The preliminary objection is hereby dismissed but the costs thereof shall be in the cause.

Dated and delivered at Meru this 1st day of October 2009.

MARY KASANGO

JUDGE