[2014] KEHC 7219 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND CASE NO.126 OF 2011

JUSTUS TURETI OBARA ………………………………...……………………………. PLAINTIFF

VERSUS

PETER KOIPEITAI NENGISOI…………………………………….…...………… DEFENDANT

RULING

This suit was brought by the Plaintiff on 29th June, 2011 through a Plaint of the same date. In the Plaint, the Plaintiff sought; a declaration that the Plaintiff is the registered proprietor of all that parcel of land known as LR. No. Transmara/Moyoi/139(hereinafter referred to as “the suit property”) and, an order of eviction of the defendant from the suit property. The suit was brought on the grounds that, for the last 34 years, the Plaintiff has been peacefully occupying the suit property during which period; the Plaintiff has been cultivating the suit property and has also constructed houses and planted trees thereon. The Plaintiff claims that when he checked the records at the land registry, he discovered that the title of the suit property has been fraudulently altered. The Plaintiff claims that the defendant fraudulently altered the said records and procured the title of the suit property in his name. The Plaintiff has set out in his plaint the particulars of the alleged fraud on the part of the defendant which includes the falsification of the adjudication records and the deletion of the name of the Plaintiff in the register of the suit property and the replacement thereof with the name of the defendant.

The defendant filed his defence to the Plaintiff’s claim on 12th July, 2011. The defendant denied the Plaintiff’s claim in its entirety. The defendant contended that the suit property was registered in the name of the defendant upon the determination of objection proceedings which determinations have never been challenged by the Plaintiff. The defendant contended further that the Plaintiff’s suit is not maintainable by dint of the provisions of section 143 (1) of the Registered Land Act, Cap. 300, Laws of Kenya (now repealed) and that the same is time barred under the provisions of section 4(1) of the Limitation of Actions Act, Cap. 22, Laws of Kenya. The Plaintiff filed a reply to defenceon 21st July, 2011 in which he reiterated the contents of the plaint and denied the allegations contained in the defendant’s statement of defence.

After the close of the pleadings, the parties did discoveries and listed the matter for hearing on 1st October 2013. Before the hearing commenced, the defendant’s advocate Mr.Oguttu notified the court that the defendant wished to raise a preliminary objection which if successful would determine the entire suit. The Plaintiff’s advocate Miss. Nekesa did not object to the objection being taken. The defendant’s preliminary objection that was hinged on paragraph 10 of the defendant’s statement of defence raised four issues for determination inlimine. The first issue was that the defendant’s title was acquired on first registration and as such the same cannot be impeached on account of fraud in view of the provisions of section 143(1) of the Registered Land Act, Cap. 300, Laws of Kenya. The Plaintiff’s suit which seeks to challenge the defendant’s title on the ground that it was acquired fraudulently is therefore a non-starter. The second issue that was raised by the defendant was that although the plaintiff in his Plaint has claimed that the adjudication and land registry records were fraudulently altered in the process of registering the suit property in the name of the defendant, the Plaintiff has not felt the need to join the department of land adjudication and settlement in this suit through the office of the Attorney General. The defendant contended that the court would not be able to make a determination on the alleged fraud in the absence of the Attorney General. The defendant argued further that even if the Plaintiff was to seek leave to amend the plaint, the action as against the Attorney General would be time barred under the provisions of Public Authorities Limitations Act, Cap. 39 Laws of Kenya which provides for 12 months limitation period for actions against public authorities based on tort. It was the defendant’s contention that in the circumstances, the Plaintiff’s suit is bad in law for non-joinder. The last issue raised by the defendant was that the Plaintiff’s suit is time barred. The defendant argued that the amendment of the adjudication record, the deletion of the Plaintiff’s name thereon and the insertion of the defendants name on the said record was done on 18th October, 1994 and that this is the action which the Plaintiff claims to have been carried out fraudulently and which forms the backbone of this suit. The defendant argued that an action based on tort should have been brought within 3 years from the date of the accrual of the cause of action. The defendant argued further that the registration of the defendant as the proprietor of the suit property was carried out on 2nd March, 2001 and that the Plaintiff has been aware of this registration all along. To challenge the registration of the suit property in the name of the defendant on account of fraud, the defendant argued that the suit should have been brought within 3 years from 2nd March, 2001 and not otherwise. In conclusion, the defendant argued that the Plaintiff’s suit is doomed to fail and no amount of evidence will inject life to it. The defendant argued that even the now all saving grace extended by Article 159(2) (d) of the Constitution can make the Plaintiff’s suit to see the light of the day. The defendant urged the court to uphold the objection and dismiss the suit herein with costs.

In a brief reply, the Plaintiff’s advocate submitted that the registration of the defendant as the proprietor of the suit property was not a first registration and as such cannot enjoy the protection afforded under section 143(1) of the Registered Land Act, Cap. 300, Laws of Kenya(now repealed). The Plaintiff argued that the defendant was registered as the proprietor of the suit property following the cancellation of the name of the Plaintiff who was the first to be registered as the proprietor of the suit property. On the issue of the non-joinder of the Attorney General, the Plaintiff cited Order 1 rule 9 of the Civil Procedure Rules and argued that it is not the business of the defendant to tell the Plaintiff who to join in the suit. On the issue that the suit is time barred, the Plaintiff argued that the Plaintiff’s suit is for the recovery of land whose limitation period under section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya is 12 years. In conclusion, the Plaintiff urged the court to dismiss the defendant’s preliminary objection so that this suit may proceed to full hearing.

I have considered the defendant’s preliminary objection and the response to it by the Plaintiff. In the case of, Mukisa Biscuit Manufacturing Co. Ltd. vs. West End Distributors Ltd. [1969]E.A 696, Sir Charles Newbold, P. said this on preliminary objection; “It raises 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 or if what is sought is the exercise of judicial discretion.”In the court of appeal case of, Peter Wekesa-vs-Peter WangusiWasike, Court of Appeal at Eldoret, Civil Appeal No.62 of 2003(unreported),the court stated that, in land matters, caution must be exercised to avoid determination of disputes on pure technicalities. I will consider the defendant’s preliminary objection with the foregoing decisions in mind. The defendant’s first point of objection was that the defendant’s title arose from a first registration and as such cannot be defeated. The defendant’s contention that he was the first registered proprietor of the suit property is contested by the defendant who also claims to have been the first to be registered as the proprietor of the suit property. While the argument put forward by the defendant is based on a point of law, I am of the opinion that the same cannot be determined without ascertaining the facts as to who between the Plaintiff and the defendant was the first to be registered as the proprietor of the suit property. The Plaintiff has claimed that his name was deleted from the adjudication record and the land register of the suit property altered to insert the name of the defendant as the owner of the suit property in place of the Plaintiff. Since the issue as to who was registered first as the proprietor of the suit property is contested and would require to be ascertained through evidence, it is not a matter on which a preliminary objection can be based. The defendant’s objection that was based on the provisions of section 143(1) of the Registered Land Act, Cap. 300, Laws of Kenya (now repealed) is therefore overruled. The next point of objection was based on non-joinder of the Attorney General in these proceedings. I am of the opinion that in light of the provisions of Order 1 rule 9 of the Civil Procedure Rules, 2010, this objection is misplaced. That rule states expressly that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and that the court may in every case deal with the matter in controversy far as regards the rights and interests of the parties before it.It follows that in this case the court has a duty to determine the rights only of the parties before it. The court cannot be called upon to dismiss the Plaintiff’s suit herein on the grounds that some other party who should have been made a party has not been made a party or that a party who should not have been joined in this suit has been joined. For the foregoing reasons, the defendant’s objection based on the issue of non-joinder is overruled. The defendant’s last objection was based on the issue of time bar. The defendant argued that the Plaintiff’s suit is based on fraud and that since the alleged acts of fraud were committed between 18th October, 1994 and 2nd March, 2001, the Plaintiff’s suit should have been brought within 3 years from those dates when the cause of action accrued. The defendant contended therefore that the Plaintiff’s suit that was filed on 26th June, 2011 was filed way out of the prescribed limitation period. I am in agreement with the Plaintiff’s submission that the Plaintiff’s claim is for the recovery of the suit property from the defendant and as such the limitation period for such a claim is 12 years as provided for in section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya.I would wish to point out further that the Plaintiff’s case although for recovery of land is based on fraud. The proviso to section 26 (a) of the Limitation of Actions Act, Cap. 22, Laws of Kenya provides that where an action is based on the fraud of the defendant or his agent, the period of limitation does not begin to run until the Plaintiff has discovered the fraud or could with reasonable diligence have discovered it. As to when the Plaintiff herein discovered the fraud alleged against the defendant is a matter to be ascertained at the trial. The defendant’s objection based on time bar also fails.

In conclusion, I wish to observe that the preliminary objection raised herein by the defendant was improper. The issues which the defendant’s advocate canvassed before me were all contentious and could not be determined in a summary manner without taking evidence. Since the matter was already listed for hearing the parties should have left the matter to proceed to trial. I hope as was observed by Sir Charles Newbold, P. in the case that I have cited above that this improper practice of raising as preliminary objection on issues which should go to trial would stop.

Due to the foregoing, the defendant’s preliminary objection is overruled. The same is dismissed with costs to the Plaintiff.

Delivered, datedandsigned at KISIIthis 31st day of January 2014.

S. OKONG’O

JUDGE

In the presence of:

Mrs. Asati h/b for Omwoyo for the Plaintiff

Mr. Ochwang’i for the Defendant

Mobisa Court clerk

S. OKONG’O

JUDGE