[2024] KEELC 13314 (KLR)
The court found that the suit was not statute barred because, according to the plaint, the alleged fraud was discovered in August 2021 and the suit was filed in March 2022, well within the twelve-year limitation period provided by Section 7 of the Limitation of Actions Act. Section 26(a) further suspends the running...
Source-derived case information.
- Citation
- [2024] KEELC 13314 (KLR)
- Parties
- Plaintiff: Kanchori Ole Lekumok; Defendant: Francis Ndar Onduso; Defendant: Grace Otieno; Defendant: Land Registrar, Kajiado
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 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, Preliminary Objection, Statute Barred Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kanchori Ole Lekumok
Plaintiff
Francis Ndar Onduso
Defendant
Grace Otieno
Defendant
Land Registrar, Kajiado
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is statute barred under Section 7 of the Limitation of Actions Act.
- 2 Whether the suit is an abuse of the court process.
- 3 Whether the suit is procedurally and substantively bad in law and liable to be struck out.
Ratio Decidendi
The court found that the suit was not statute barred because, according to the plaint, the alleged fraud was discovered in August 2021 and the suit was filed in March 2022, well within the twelve-year limitation period provided by Section 7 of the Limitation of Actions Act. Section 26(a) further suspends the running of time until discovery of fraud. Therefore, the preliminary objection lacked merit and was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The notice of preliminary objection dated 12/10/2023 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
Lekumok v Onduso & 2 others (Environment & Land Case 21 of 2022) [2024] KEELC 13314 (KLR) (20 November 2024) (Ruling)
Neutral citation: [2024] KEELC 13314 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 21 of 2022
MN Gicheru, J
November 20, 2024
Between
Kanchori Ole Lekumok
Plaintiff
and
Francis Ndar Onduso
1st Defendant
Grace Otieno
2nd Defendant
Land Registrar, Kajiado
3rd Defendant
Ruling
1. This ruling is on the notice of preliminary objection dated 12/10/2023. The said objection is based on three grounds which read as follows.1. That the suit is statute barred by dint of Section 7 of the Limitation of Actions Act and leave to file the same out of time was not sought by the plaintiff.2. That the suit is a pure abuse of the court process.3. That the suit is procedurally and substantively bad in law, hence suitable to be dismissed and/or struck out with costs to the 1st and 2nd defendants.For the above stated grounds, the suit filed vide the plaint dated 1/3/2022 should be struck out with costs.
2. The preliminary objection is unopposed because I have not seen any submissions filed by the plaintiff’s counsel or any form of response. I have not seen any submissions by the defendants’ counsel either.
3. I find that the preliminary objection has no merit for one reason. Under Section 26 (a) of the Limitation of Actions Act, it is provided as follows.Where, in the case of an action for which a period of limitation is prescribed, eithera.The action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent, orb.The right of action is concealed by the fraud of any such as aforesaid, orc.…The period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake…”At paragraph 9 of the plaint dated 1/3/2022 it is averred that the alleged fraud of the defendants was not discovered until around August 2021. Again at paragraph 13, the plaintiff has pleaded 11 (eleven) particulars of fraud. Going by Section 26 of the Limitation of Actions Act, time started running in August 2021 and the suit was filed in March 2022. The suit is not time barred because it was brought within eight months of the discovery of the alleged fraud. Section 7 provides for twelve years. The plaintiff’s suit is on time.For the above stated reasons, I dismiss the notice of preliminary objection dated 12/10/2023. Costs in the cause.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY 20TH DAY OF NOVEMBER 2024. M.N. GICHERUJUDGE