[2023] KEELC 18941 (KLR)

Osman v Abdalla & 2 others (Environment & Land Case E010 of 2022) [2023] KEELC 18941 (KLR) (29 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18941 (KLR)

Republic of Kenya

In the Environment and Land Court at Garissa

Environment & Land Case E010 of 2022

JM Mutungi, J

June 29, 2023

Between

Abdi Sirat Osman

Plaintiff

and

Dahir Omar Abdalla

1st Defendant

Bishara Abdulrahman Nassir

2nd Defendant

Land Registrar Lands Office Garissa County

3rd Defendant

Ruling

1. The Plaintiff instituted the present suit vide a Plaint dated December 9, 2022. The Plaintiff inter alia sought a declaration that land title Garissa/Block 1/259 was unprocedually, unlawfully and fraudulently issued to the 1st Defendant and the subsequent transfer to the 2nd Defendant of the title was unlawful, wrongful, illegal and fraudulent. The Plaintiff consequently prayed for the title issued to the 1st Defendant and 2nd Defendant to be cancelled. The Plaintiff sought for a declaration that the suit premises belonged to him on his own behalf and on behalf of the beneficiaries of Sirat Osman Hirsi(deceased).

2. Upon being served with the pleadings the 2nd Defendant appointed the Firm of Abdikeir & Associates Advocates who filed a Notice of Appointment of Advocate simultaneously with a Notice of Preliminary Objection dated February 22, 2023. The Preliminary objection set out the following grounds in support:-1. The Plaintiff’s suit is time-barred have been filed after three(3) years from the date when the alleged tort of fraud accrued, the Plaintiff having found out about the alleged fraud and registered a Caution against land parcel No Garissa/Block1/259 in July 2005. 2.The Plaintiff’s suit grossly offends Section 4(2) and 7 of the Limitation of Actions Act, Cap 22 of the Laws of Kenya having been filed outside the prescribed statutory timelines.3. This Court lacks the jurisdiction to hear and determine this suit by virtue of the cause of action being time barred, having been filed after the lapse of the statutory period as set out in Section 4 (2) and 7 of the Limitation of Actions Act.4. The Plaintiff’s suit is incompetent, bad in law and that the same should be struck out with costs to the 2nd Defendant.The 2nd Defendant did not file any defence and/or any documents.

3. The Court on March 8, 2023 directed that the Preliminary Objection be canvassed by way of written submissions. The 2nd Defendant filed her submissions on March 15, 2023 while the Plaintiff filed his submissions on May 18, 2023.

4. The 2nd Defendant in her submissions made reference to the Plaintiff’s Plaint paragraphs 15-20 and asserted that the Plaintiff’s Plaint was clearly predicated on the tort of fraud. As per the said paragraphs of the Plaint, the Plaintiff averred that the 1st Defendant was unlawfully fraudulently issued with a certificate of lease over LR No Garissa/Block 1/259 (previously Plot No 605) on December 9, 1994 when there was a dispute over the suit premises which had not been determined by the Court and/or elders. The Plaintiff averred that he in July 2005 registered a caution over the title to protect their interest in the property. The Plaintiff further averred that he in November, 2022 learnt that the title had been transferred to the 2nd Defendant when the 2nd Defendant’s agents attempted to forcibly take possession of the land and they showed a copy of a title indicating the property had been transferred to the 2nd Defendant on September 22, 2022. The Plaintiff claimed the transfer of the title to the 2nd Defendant was fraudulently done with the objective of defeating the Plaintiff’s ownership claim over the suit land.

5. The 2nd Defendant, based on the pleading by the Plaintiff argued that the Plaintiff’s suit was founded on the tort of fraud and consequently ought to have been instituted within a period of 3 years from the date of the cause of action under the provisions of Section 4(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya. The 2nd Defendant further argued the Plaintiffs suit was equally barred under the provisions of Section 7 of the Limitation of Actions Act since the Plaintiff had not instituted the suit within a period of 12 years from the date of accrual of the cause of action.Section 4(2) and 7 of the Limitation of Actions Act provide as follows:-4(2)An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.7. 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 accrued to some person through whom he claims, to that person.The 2nd Defendant submitted that the cause of action accrued to the Plaintiff’s family when they became aware of the alleged fraud and registered a caution on July 15, 2005, against the title. According to the 2nd Defendant, the Plaintiff was aware of the alleged fraud in June 2005 and therefore should have instituted the suit on or before June 2008. The 2nd Defendant in support of his submission relied on the Case of Joel Oichoe Oisebe –vs- The Agriculture, Fisheries and Food Authority & 9 Others (2017) eKLR where the Court struck out the suit by the Plaintiff on account of being time barred holding that the Plaintiff in the suit had become aware of fraud when he registered a caution against the title yet failed to institute the suit within the three years period. The 2nd Defendant also placed reliance on the Case of Nyakundi Okerio & Another –vs- Elijah Sokobe Obot & 2 Others(2021)eKLR.

6. The Plaintiff submitted that the Preliminary Objection was misconceived and lacked merit. The Plaintiff submitted that Section 4(2) of the Limitation of Actions Act, had no application in the present matter since the claim relates to ownership of the disputed parcel of land that had been the subject of litigation as between the Plaintiff and the 1st Defendant. The Plaintiff further submitted the 2nd Defendant would not avail herself of the application of Section 4(2) of the Limitation of Actions Act since she only got to be registered as owner of the disputed parcel of land on September 22, 2022 a discovery the Plaintiff made in November, 2022 and consequent to which discovery the Plaintiff instituted the present suit.

7. The Plaintiff asserts that the 2nd Defendant’s Preliminary Objection did not meet the criteria of what qualifies to be taken as a Preliminary Objection as it was not on a pure point of Law. The Plaintiff relied on the Case of Mukisa Biscuit Co Ltd –vs- West End Distributors (1969) EA 696 where Sir Charles Newbold, P. laid succinctly what constitutes a Preliminary Objection thus:-“-----A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of Law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of Judicial discretion.”Law, JA in the same case stated thus:-“So far as I am aware, a Preliminary Objection consists of a point of Law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a Preliminary point may dispose the suit.”

8. The Plaintiff has argued that a Preliminary Objection has to emanate from some pleading and as the 2nd Defendant had not filed any pleading, the Preliminary Objection had no foundation and was therefore unsustainable. My view is that a Notice of Preliminary Objection is a pleading and that the 2nd Defendant did not need to file a defence so us to raise a Preliminary Objection. As long as the Notice of Preliminary Objection identifies the point of Law that is raised, the Preliminary Objection can and should be sustained and heard on merit.

9. The Plaintiff further submitted that the issues raised on the Preliminary Objection are issues that would invite further investigation which could only be done at the hearing and therefore do not qualify to be raised as Preliminary Objections. In support of this submission the Plaintiff relied on the Case of Oraro –vs- Mbajja(2005) eKLR where J.B Ojwang, J (as he then was) stated as follows:-“-----A Preliminary Objection, correctly understood is now well identified, and declared to be the point of Law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection and yet it bears factual aspects calling for proof or seeks to adduce, evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed. I am in agreement that where a Court needs to investigate facts, a matter cannot be raised as a Preliminary point.”

10. I have reviewed the pleadings and the submissions by the 2nd Defendant and the Plaintiff. It is evident from the Plaint and the documents exhibited by the Plaintiff that there has been a long running dispute regarding a Plot No. 605 Garissa (now probably Garissa/Block 1/259) between the Plaintiff’s family and the 1st Defendant. A suit was filed in Garissa SRM’s Court C.C No. 29 of 1993 touching on the suit property which apparently was referred to arbitration by elders. The elders made an award in favour of the 1st Defendant which was adopted by the Court on March 24, 1995 but was on application by the Plaintiff set aside by R Wendo (Mrs) P M(as she then was) on October 22, 1997 and a fresh hearing of the suit was directed to be conducted at the Garissa Court or before a new panel of elders.

11. The record is unclear as to whether the case proceeded afresh at Garissa P.M’s Court or before a new panel of elders. That would be a matter that required to be clarified through evidence. As the 1st and 2nd Defendants have not filed any defences, it is not apparent how the 1st Defendant got registered as the owner of the suit property on December 9,1994 when as per the record there was ongoing litigation relating to the plot between the Plaintiff and the 1st Defendant. Equally, it is unclear how the 2nd Defendant got to be registered as the owner of the disputed plot on September 22, 2022. The record shows the Plaintiff had registered a caution against the title way back on July 15, 2005. When was this caution removed and at whose instance? Was the Plaintiff notified of the intention to remove the caution? These are matters that can only be clarified through evidence at the hearing.

12. The 2nd Defendant only got registered as owner of the suit property on September 22, 2022 and it is as at that date that she acquired an interest on the suit property. The Plaintiff avers the suit property was transferred to her fraudulently and that explains her joinder to the suit. The 2nd Defendant cannot claim limitation on behalf of the 1st Defendant. As I have pointed out there are actions that would require to be explained through evidence by the 1st Defendant. The suit against the 2nd Defendant cannot be statute barred as the cause of action against her at the very earliest accrued when she was registered as owner of the suit property and hence even if the suit against her was founded on fraud, the limitation period would not have lapsed. I suppose the suit against her would be one for recovery of land and that the issue of fraud would just be by way of evidence to demonstrate the transfer to her was fraudulent.

13. In the premises having carefully evaluated and considered the Preliminary Objection and the submissions by the parties, it is my determination that the Preliminary Objection lacks merit and I dismiss the same with costs to the Plaintiff.

14. The parties are hereby directed to comply with Order 11 Civil Procedure Ruleswithin the next 60 days from the date of this Ruling. The matter is fixed for pre-trial directions on September 27, 2023.

RULING DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JUNE 2023. J. M. MUTUNGIE.L.C JUDGE