[2017] KEELC 3329 (KLR)
The court found that the actual date when the Plaintiff discovered the alleged fraudulent dealings could only be ascertained at trial, as the Plaint did not specifically indicate when the Plaintiff became aware of the fraud. In view of Section 26 of the Limitation of Actions Act, which postpones the running of time...
Source-derived case information.
- Citation
- [2017] KEELC 3329 (KLR)
- Parties
- Plaintiff: Kioko Muthoka; Defendant: Kalembwani & Ngaamba Farmers Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 342 of 2012
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- OA Angote
- Legal Topics
- Limitation of Actions, Fraud in Land Transactions, Jurisdiction, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kioko Muthoka
Plaintiff
Kalembwani & Ngaamba Farmers Company Limited
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time barred under Section 7 of the Limitation of Actions Act.
- 2 Whether the period of limitation is postponed due to alleged fraud under Section 26 of the Limitation of Actions Act.
Ratio Decidendi
The court found that the actual date when the Plaintiff discovered the alleged fraudulent dealings could only be ascertained at trial, as the Plaint did not specifically indicate when the Plaintiff became aware of the fraud. In view of Section 26 of the Limitation of Actions Act, which postpones the running of time in cases of fraud until discovery, the court held that the Preliminary Objection on limitation was unmeritorious. The Defendant's objection was therefore dismissed, allowing the suit to proceed to trial where the factual issue of when the Plaintiff discovered the fraud could be determined.
Court Disposition
preliminary objection dismissed
Orders
- The Notice of Preliminary Objection dated 17th March, 2015 is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC CASE NO. 342 OF 2012
KIOKO MUTHOKA ……PLAINTIFF
VERSUS
KALEMBWANI & NGAAMBA FARMERS COMPANY LIMITED …DEFENDANT
RULING
1. What is before me is the Notice of Preliminary Objection dated 17th March, 2015 filed by the Defendant.
2. The Preliminary point of law raised by the Defendant is that by virtue of Section 7 of the Limitation of Actions Act, this suit cannot lie against the Defendant.
3. In his Replying Affidavit, the Plaintiff deponed that the course of action herein arose in the year 2005 when he became aware of the fraudulent transfer of his land to Shadrack Mailu Makundi; that twelve (12) years had not lapsed by the time he filed this suit and that the Notice of Preliminary Objection should be dismissed.
4. The Objection was argued by way of written submissions.
5. The Defendant’s advocate submitted that the Plaintiff’s claim against the Defendant is time barred; that the cause for action allegedly arose in 1978 when the Plaintiff realised that the land which he was allocated was fraudulently allocated to third party and that is over thirty four (34) years ago.
6. The issue of limitation, it was submitted, goes to the jurisdiction of the court and that this court cannot entertain the current suit because it is time barred.
7. In his submissions, the Plaintiff’s advocate submitted that the suit is not time barred and that the Plaintiff filed this suit when the Defendant refused to allocate him the land.
8. Counsel submitted that pursuant to the provision of Section 26 of the Limitation of Actions Act, the period of limitation does not begin to run until when the Plaintiff discovers the fraud or mistake.
9. In his Amended Plaint dated 20th January, 2015, the Plaintiff averred that he became a member of the Defendant in 1972; that he later on found that the land that the Defendant had allocated him had been fraudulently allocated to one Shadrack Makundi Mailu and that he lodged a claim in respect to the suit land with the Makueni Land Dispute Tribunal in the year 2006.
10. The Plaint does not specifically indicate when the Plaintiff realised that the land allegedly allocated to him by the Defendant had been re-allocated to one Shadrack. The actual date of when the Plaintiff knew about the alleged fraudulent dealings in the suit property can only be ascertained at trial.
11. In the circumstances, and in view of the provisions of Section 26 of the Limitation of Actions Act which provides that where fraud is pleaded, the period of limitation does not begin to run until the Plaintiff has discovered the fraud, I find the Preliminary Objection to be unmeritorious.
12. For those reasons, the Notice of Preliminary Objection dated 17th March, 2015 is dismissed with costs.
DATEDAND DELIVERED AT MACHAKOS THIS 17THDAY OF MARCH, 2017
OSCAR A. ANGOTE
JUDGE