[2018] KEELC 3447 (KLR)
The court found that while the suit relates to recovery of land and would ordinarily be subject to the limitation periods under the Limitation of Actions Act, the plaintiff's allegations of fraud and misrepresentation against the defendants raise serious issues that cannot be resolved at the preliminary objection...
Source-derived case information.
- Citation
- [2018] KEELC 3447 (KLR)
- Parties
- Plaintiff: Kiraine Koila; Defendant: Pirias Enole Kishoyian; Defendant: County Land Registrar Narok; Defendant: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 163 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; suit to proceed to full hearing
- Judges
- MN Kullow
- Legal Topics
- Limitation of Actions, Recovery of Land, Fraud in Land Transactions, Jurisdiction, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiraine Koila
Plaintiff
Pirias Enole Kishoyian
Defendant
County Land Registrar Narok
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is barred by limitation under sections 4(1) and 7 of the Limitation of Actions Act.
- 2 Whether the court has jurisdiction to hear a claim for recovery of land allegedly acquired through fraud.
- 3 Whether issues of fraud can be determined at the preliminary objection stage.
Ratio Decidendi
The court found that while the suit relates to recovery of land and would ordinarily be subject to the limitation periods under the Limitation of Actions Act, the plaintiff's allegations of fraud and misrepresentation against the defendants raise serious issues that cannot be resolved at the preliminary objection stage. The court held that proof of fraud requires evidence, which can only be adduced at a full hearing. Therefore, the preliminary objection based on limitation and lack of jurisdiction was disallowed, and the matter was directed to proceed to full hearing for determination of the substantive issues.
Court Disposition
preliminary objection dismissed; suit to proceed to full hearing
Orders
- The preliminary objection is disallowed.
- The suit shall proceed to full hearing.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENIRONMENT AND LANDS COURT AT NAROK
ELC CAUSE NO. 163 OF 2017
FORMERLY NAKURU ELC 154 OF 2016
KIRAINE KOILA.......................................................PLAINTIFF
-VERSUS-
PIRIAS ENOLE KISHOYIAN.......................1ST DEFENDANT
COUNTY LAND REGISTRAR NAROK.....2ND DEFENDANT
HON. ATTORNEY GENERAL....................3RD DEFENDANT
RULING
The Respondent in this matter filed a Notice of Preliminary Objection on points of law dated 4th April, 2017 raising jurisdictional objections to the hearing and determination of the entire suit. The respondents contend that the court lacks the jurisdiction to try the suit pursuant to the provisions of section 4 (1) of the Limitations of Actions Act Chapter 10 Laws of Kenya and the court cant grant the orders sought.
The respondent objections are based on the grounds that the claim of the suit property arises from a contractual agreement between the plaintiff and a third party now deceased and that the same thus offends the provisions of section 4 (1) of the Limitation of Actions Act which provides that
“No action found on contract can be brought upon expiry of a period of 6 months and Section 7 of the Limitation of Actions Act which provide that no action to recover land may be brought after the need of a period of 12 years.
The Respondent contends that the Applicant have not been diligent and they are indolent and should not expect to get the help of the court.
When the hearing of the application was fixed the parties consented that the preliminary objection shall be disposed of by way of written submissions and the respondent filed their submission and the applicant did not.
I have looked at the submissions by counsel for the Applicant and his preliminary objection is premised on the Limitation of Actions Act Chapter 10 of the Laws of Kenya. In so far the suit herein offends the provisions of section 4 and 7 of the aforesaid Act, as the suit relates to recovery land that was acquired by way of sale and recovery of the same.
From the plaint that was filed the plaintiff contends that he purchased about 5 acres of the land from Labuny Ole Kishoyian who is deceased who died before he could transfer the land in his name and subsequently the 1st defendant in collusion with the 2nd Defendant caused the title to the land to be issued in the name of the 1st defendant.
Having considered the pleadings before me and the submissions made by the 1st respondent I find that the suit herein undoubtly relates to recovery of land, however the Plaintiff raises serious issues of fraud and misrepresentation and lack of integrity on the part of all the defendants. Fraud in a serious issue that its proof I may not be able to find at this interlocutory stage and in view of the above I will order that the issues raised can only be determined at a full hearing where evidence shall be taken as the claim herein is against a third party who was not privy to the contractual relationship between the plaintiff and respondents.
In view of the above I will disallow the preliminary objection and direct that the suit herein do proceed for full hearing.
Dated, SignedandDeliveredin open court atNAROKon this 11thday ofApril, 2018.
Mohammed Noor Kullow
Judge
11/4/18
In the presence of:-
CA: Chuma
Ms Cheptoo for the plaintiff
N/A for the respondent
Mohamed Kullow
Judge
11/4/18