[2007] KEHC 449 (KLR)
The court held that although the Limitation of Actions Act generally requires suits for recovery of land to be filed within twelve years, Section 26 provides an exception where fraud is alleged, allowing time to run from the date of discovery of the fraud. The plaintiff did not plead when the fraud was discovered,...
Source-derived case information.
- Citation
- [2007] KEHC 449 (KLR)
- Parties
- Plaintiff: Philip Kimutai Langat p/a Kiplangat Maina; Defendant: Job Kibet Maina
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 100 of 2005
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- LK Kimaru
- Legal Topics
- Limitation of Actions, Fraudulent Land Transfer, Pleadings Amendment, Land Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Kimutai Langat p/a Kiplangat Maina
Plaintiff
Job Kibet Maina
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff's suit is time barred under the Limitation of Actions Act.
- 2 Whether failure to plead the date of discovery of fraud is fatal to the plaintiff's case.
- 3 Whether the plaintiff should be allowed to amend the plaint to clarify the time of discovery of fraud.
Ratio Decidendi
The court held that although the Limitation of Actions Act generally requires suits for recovery of land to be filed within twelve years, Section 26 provides an exception where fraud is alleged, allowing time to run from the date of discovery of the fraud. The plaintiff did not plead when the fraud was discovered, but this omission is not fatal and can be cured by amendment. Given the subject matter is land and the allegations are of fraud, the court found it appropriate to allow the plaintiff to amend the plaint and proceed to a hearing on the merits. The preliminary objection was therefore dismissed as lacking merit.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
- The plaintiff is advised to amend the plaint to clarify the time when the cause of action arose.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Civil Case 100 of 2005
PHILIP KIMUTAI LANGAT
p/a KIPLANGAT MAINA………....…………………PLAINTIFF
VERSUS
JOB KIBET MAINA……………………………….DEFENDANT
RULING
On the 29th September 2005, Phillip Kimutai Langat claiming to be suing on a power of attorney given to him by his father Kiplangat Maina, filed suit against the defendant Job Kibet Maina seeking for orders of this court to make an order that the transfer of parcel No. Kericho/Sosiot/604 to the defendant and the subsequent subdivision of the same into two parcel of land i.e. parcels No. Kericho/Sosiot/655 and 656 be declared to be null and void on account of the same having been procured by fraud. The defendant filed a defence denying that the said parcel of land had been fraudulently transferred to him. He averred that he had lawfully purchased the same from the father of the plaintiff in 1976.
At the hearing of the case, the defendant raised a preliminary objection to the effect that the plaintiff’s suit was fatally defective in that it was filed after the period in which the same ought to have been filed as provided for by the Limitation of Actions Act had expired. Mr. Kirui for the defendant submitted that the cause of action arose on the 30th of December 1976 and since then the plaintiff did nothing to assert his rights. According to the defendant, the plaintiff could not now file suit purportedly to enforce a right to land after the expiry of more than thirty years. He submitted that according to Section 7 of Limitation of Actions Act, any claim to land ought to be filed within twelve years. He therefore submitted that the suit filed by the plaintiff was time barred. He urged this court to uphold the preliminary objection.
Mr. Korir for the plaintiff opposed the preliminary objection. He submitted that the plaintiff had filed the case within the period allowed by the Limitation of Actions Act. He submitted that under Section 26 of the Limitation of Actions Act, time started to run the moment a litigant discovered the fraud. In the present case, he submitted that the plaintiff learnt of the fraud when the defendant purported to sub-divide the suit land. He submitted that this court should lean towards deciding land disputes on merits. He was of the view that any deficiency in the plaint could be cured by the plaintiff making the necessary amendments. He urged this court to disallow the preliminary objection.
I have carefully considered the preliminary objection raised. The issue for determination by this court is whether the plaintiff’s suit is time barred. The plaintiff pleaded that the defendant fraudulently transferred the suit land to himself in 1976. He further averred that the defendant fraudulently sub-divided the suit land in 2001 without following the requisite procedure of seeking the consent of the Land Control Board. The plaintiff’s suit is based on fraud. Whereas I agree with the defendant that any suit for the recovery of land ought to be filed within twelve years as provided for by Section 7 of the Limitation of Actions Act, Section 26 of the said Act provides that where fraud, mistake or ignorance of material facts is pleaded, time will run from the moment such a litigant discovered the fraud or mistake. In the present case, the plaintiff did not plead when he discovered the fraud. It is further evident from the plaint that the plaintiff has brought the suit on behalf of his father Kiplangat Maina who has donated to him a power of attorney. He did not annex the said power of attorney to the plaint.
However, I have taken into consideration that the subject matter of the suit is land. The Court of Appeal has directed courts to hear and determine matters dealing with disputes involving land, in so far as possible, on its merits and not on technicalities. In the present case, the fact that the plaintiff did not plead the time which he discovered the fraud is not fatal to his case. He can plead such a time after amending his pleadings. As earlier stated in this ruling, the plaintiff’s suit is predicated on allegations of fraud. It is imperative that the plaintiff be allowed to ventilate his case by establishing or otherwise the allegations of fraud against the defendant.
In the circumstances of this case therefore, I hold that the preliminary objection lacks merit and is hereby dismissed with costs. Although the plaintiff’s suit is for the recovery of land, the substance of the suit is the allegations of fraud raised by the plaintiff. Those allegations should be heard and determined on merits. The plaintiff is advised to make appropriate amendments to his plaint so that the confusion as to the time when the cause of action arose may be clarified.
DATEDatKERICHOthis 19th day ofJanuary 2007.
L. KIMARU
JUDGE