[2012] KEHC 234 (KLR)
The court found that the cause of action, being the alleged fraudulent transfer of land, arose in 1996. The plaintiff filed the suit in 2011, approximately fifteen years after the alleged fraud. Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from the accrual of the right...
Source-derived case information.
- Citation
- [2012] KEHC 234 (KLR)
- Parties
- Plaintiff: Messen Shisia Juma; Defendant: Bilha Olingo Muluka; Defendant: Sophie Akola Muluka
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 124 of 2011
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Plaintiff's suit struck out as statute barred with costs to the defendants.
- Legal Topics
- Limitation of Actions, Fraudulent Transfer of Land, Jurisdiction, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Messen Shisia Juma
Plaintiff
Bilha Olingo Muluka
Defendant
Sophie Akola Muluka
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's suit is statute barred under the Limitation of Actions Act.
- 2 Whether the plaintiff's suit is fatally defective and should be struck out.
- 3 Whether the court has jurisdiction over the matter.
Ratio Decidendi
The court found that the cause of action, being the alleged fraudulent transfer of land, arose in 1996. The plaintiff filed the suit in 2011, approximately fifteen years after the alleged fraud. Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from the accrual of the right of action. Since the statutory period had lapsed, the plaintiff's claim was time barred. The court therefore struck out the suit with costs to the defendants, holding that the suit was incompetent and could not be entertained due to limitation.
Court Disposition
Plaintiff's suit struck out as statute barred with costs to the defendants.
Orders
- The plaintiff's suit is struck out.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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MESSEN SHISIA JUMA ……………….………….…….. PLAINTIFF
VERSUS
BILHA OLINGO MULUKA …………………….…. 1ST DEFENDANT
SOPHIE AKOLA MULUKA ………………….…... 2ND DEFENDANT
RULING
The Preliminary Objection dated 21. 9.12 was argued before me on 25. 9.12. The Preliminary Objection is based on the following points of law:-
“1. That the plaintiff’s suit is incompetent, bad in law and should be struckout with costs.
2. That the plaintiff’s suit should be struck out for being statute barred.
3. That the plaintiff’s suit is fatally defective, misconceived and the orderssought are untenable in law.
4. That this court lacks jurisdiction over this matter.”
Mr. Samba advocate for the defendants argued that the cause of action arose in the year 1996 and therefore the action herein which is based on fraud is time barred.
The plaintiff contended that he never sold the land but that it was sold to one MESSEN LUMATETE a stranger to him. According to the plaintiff the land was fraudulently transferred to the defendants.
I have considered the pleadings herein. The plaintiff instituted this case by way of the Plaint dated 22. 9.2011 which was filed on the same date.
Paragraph No. 4 of the Plaint reads as follows:-
“That on or about the 6th day of August 1996 the 1st defendant wilfully, unlawfully without justifiable cause of action, permission, consent and/or otherwise fraudulently transferred and/or caused to be transferred to herself the plaintiff’s parcel of land better known as L.R. NO. BUTSOTSO/SHIKOTI/4329. ”
The plaintiff then went ahead to give the particulars of fraud.
In Paragraph No. 2 and 3 of the defendant’s joint statement of defence gave the year 1996 as the year the suit land was transferred to the 1st defendant.
The reply to the joint defence denies that there was any sale or transfer of the land.
It is therefore clear from the pleadings that the cause of action arose in the year 1996. The alleged fraudulent transactions took place in the year 1996. That is about fifteen years ago. The plaintiff’s claim is therefore time barred.
Section 7 of the Limitation of Actions Act states as follows:-
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
Consequently, I strike out the plaintiff’s suit with costs to the defendants.
Delivered, dated and signed at Kakamega this 18th day of December, 2012
B. THURANIRA JADEN
J U D G E