[2023] KEELC 22484 (KLR)
The court found that the preliminary objection lacked merit because the date of discovery of the alleged fraud was not disclosed in the pleadings, but the plaintiff retained the right to amend the plaint and witness statement to include this information. The Limitation of Actions Act, specifically Section 26(2),...
Source-derived case information.
- Citation
- [2023] KEELC 22484 (KLR)
- Parties
- Plaintiff: Joseph Kuyan (Suing as personal representative in the Estate of Kuyan Ole Morianka Nangeram alias Kuyan Murianka (Deceased)); Defendant: Isaac Gathugu Mutonyi; Defendant: Isaiah Kirindi Wambugu; Defendant: James Waithaka Chege; Defendant: District Lands Registrar, Kajiado; Defendant: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E068 of 2022
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MN Gicheru
- Legal Topics
- Limitation of Actions, Fraud in Land Transactions, Jurisdiction of Court, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kuyan (Suing as personal representative in the Estate of Kuyan Ole Morianka Nangeram alias Kuyan Murianka (Deceased))
Plaintiff
Isaac Gathugu Mutonyi
Defendant
Isaiah Kirindi Wambugu
Defendant
James Waithaka Chege
Defendant
District Lands Registrar, Kajiado
Defendant
The Attorney General
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is barred by limitation of actions due to alleged fraud occurring in 1991.
- 2 Whether the court lacks jurisdiction to entertain the suit.
- 3 Whether the pleadings can be amended to disclose the date of discovery of the alleged fraud.
Ratio Decidendi
The court found that the preliminary objection lacked merit because the date of discovery of the alleged fraud was not disclosed in the pleadings, but the plaintiff retained the right to amend the plaint and witness statement to include this information. The Limitation of Actions Act, specifically Section 26(2), provides that time does not begin to run until the discovery of fraud, making it premature to strike out the suit on limitation grounds. Furthermore, the court emphasized that striking out pleadings is a drastic measure and should not be taken where the defect can be cured by amendment. The court also underscored the importance of allowing parties to have their disputes determined...
Court Disposition
preliminary objection dismissed
Orders
- The notice of preliminary objection dated 1/10/2022 is disallowed.
- The suit is not struck out and may proceed.
Full Case Text
Judgment text and source record
30 paragraphs
Kuyan (Suing as personal representative in the Estate of Kuyan Ole Morianka Nangeram alias Kuyan Murianka (Deceased) v Mutonyi & 4 others (Environment & Land Case E068 of 2022) [2023] KEELC 22484 (KLR) (19 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22484 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case E068 of 2022
MN Gicheru, J
December 19, 2023
Between
Joseph Kuyan (Suing as personal representative in the Estate of Kuyan Ole Morianka Nangeram alias Kuyan Murianka (Deceased)
Plaintiff
and
Isaac Gathugu Mutonyi
1st Defendant
Isaiah Kirindi Wambugu
2nd Defendant
James Waithaka Chege
3rd Defendant
District Lands Registrar, Kajiado
4th Defendant
The Attorney General
5th Defendant
Ruling
1. This ruling is on the notice of preliminary objection dated 1/10/2022. The notice which is by the 1st and 2nd defendants seeks to have the plaintiff’s suit struck out with costs on the following four grounds:a.This court lacks jurisdiction to entertain the suit herein.b.This suit is bad in law as it is barred by Section 7 of the Limitation of Actions Act as the cause of action arose 1991 – 31 years ago.c.This suit is based on fraud, which is a tort, which allegedly occurred in 1991 and an action based on tort must be brought within 3 years from the date the action accrued according to Section 4 of the Limitation of Actions Act.d.As held in owners of Motor Vessel Lillian S v Caltex Oil Kenya Ltd (1989) KLR I, where a court lacks jurisdiction, it must down its tools; this is a suitable case for this court to down its tools.
2. On 1/2/2023, the court gave directions that the preliminary objection be canvassed by way of written submissions. The 1st and 2nd defendants filed their written submissions on 21/3/2023 while the plaintiffs’ were filed on 2/5/2023.
3. I have carefully considered the preliminary objection in its entirety including the submissions and the law cited therein and even through neither the plaint nor the plaintiff’s witness statement disclose the date of discovery of the alleged fraud, the objection has no merit for the following reasons.
4. Firstly, both the plaint and the witness statement can still be amended to disclose the date of the discovery of the alleged fraud on the part of the 1st, 2nd and 4th defendants. Under Order 8 Rule 5 of the Civil Procedure Rules, there is still room for amending the plaintiffs’ pleadings.
5. Secondly, though fraud may be a tort and actions founded on tort must be brought within three (3) years of the date of accrual, by dint of Section 4(2) of the Limitation of Actions Act, the same Act at Section 26(2) provides that time will not begin to run until the discovery of the alleged fraud on the part of the defendant.
6. Finally, it is a draconian move to strike out pleadings that can be redeemed by an amendment. A court should always sustain a suit rather than strike it out so that the real issue in dispute is litigated upon in the manner envisaged by Article 50(1) of the Constitution.
For the above stated reasons, I disallow the notice of preliminary objection.It is so ordered.
DELIVERED, SIGNED AND DATED VIRTUALLY THIS 19TH DAY DECEMBER, 2023. M. N. GICHERUJUDGE