[2022] KEELC 15429 (KLR)
The court found that the preliminary objection lacked merit because the limitation period for actions based on fraud or mistake, as pleaded by the plaintiffs, begins to run from the date the fraud or mistake is discovered, which in this case was in 2018. Therefore, the suit was not time-barred under the Limitation...
Source-derived case information.
- Citation
- [2022] KEELC 15429 (KLR)
- Parties
- Plaintiff: Poka Ranch Group Community Based Organization; Plaintiff: Poka Group Ranch; Plaintiff: Jeremiah Lemako; Plaintiff: Harrison Tago; Defendant: County Government Of Kajiado; Defendant: Hon. David Ole Sankori; Defendant: Gikena Investment Limited; Defendant: Esther Ndaru Mukuria (Sued in her person capacity and on behalf of Estate of the Late Walter Bernard Mukundi Mukuria (Deceased)); Defendant: Samuel Mwangi; Defendant: Bouyancy Holdings Limited; Defendant: Land Registrar, Kajiado; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 31 of 2020
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- MN Gicheru
- Legal Topics
- Limitation of Actions, Fraud in Land Transactions, Breach of Trust, Public Authorities Limitation, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Poka Ranch Group Community Based Organization
Plaintiff
Poka Group Ranch
Plaintiff
Jeremiah Lemako
Plaintiff
Harrison Tago
Plaintiff
County Government Of Kajiado
Defendant
Hon. David Ole Sankori
Defendant
Gikena Investment Limited
Defendant
Esther Ndaru Mukuria (Sued in her person capacity and on behalf of Estate of the Late Walter Bernard Mukundi Mukuria (Deceased))
Defendant
Samuel Mwangi
Defendant
Bouyancy Holdings Limited
Defendant
Land Registrar, Kajiado
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is barred by limitation under the Limitation of Actions Act and the Public Authorities Limitation Act.
- 2 Whether the cause of action is based on fraud or breach of trust, thus affecting the limitation period.
- 3 Whether the preliminary objection raises pure points of law warranting striking out of the suit.
Ratio Decidendi
The court found that the preliminary objection lacked merit because the limitation period for actions based on fraud or mistake, as pleaded by the plaintiffs, begins to run from the date the fraud or mistake is discovered, which in this case was in 2018. Therefore, the suit was not time-barred under the Limitation of Actions Act. Furthermore, the Public Authorities Limitation Act did not apply because the suit was not based on tort or contract but on breach of trust and fraud. The court concluded that the preliminary objection did not raise pure points of law that would warrant striking out the suit at this stage.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection dated February 14, 2022 is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
39 paragraphs
Poka Ranch Group Community Based Organization & 3 others v County Government of Kajiado & 7 others (Environment & Land Case 31 of 2020) [2022] KEELC 15429 (KLR) (20 December 2022) (Ruling)
Neutral citation: [2022] KEELC 15429 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 31 of 2020
MN Gicheru, J
December 20, 2022
Between
Poka Ranch Group Community Based Organization
1st Plaintiff
Poka Group Ranch
2nd Plaintiff
Jeremiah Lemako
3rd Plaintiff
Harrison Tago
4th Plaintiff
and
County Government Of Kajiado
1st Defendant
Hon. David Ole Sankori
2nd Defendant
Gikena Investment Limited
3rd Defendant
Esther Ndaru Mukuria (Sued in her person capacity and on behalf of Estate of the Late Walter Bernard Mukundi Mukuria (Deceased)
4th Defendant
Samuel Mwangi
5th Defendant
Bouyancy Holdings Limited
6th Defendant
Land Registrar, Kajiado
7th Defendant
The Hon. Attorney General
8th Defendant
Ruling
1. This ruling is on the fourth defendant’s preliminary objection dated February 14, 2022. It reads as follows.Take notice that the 4th defendant shall raise the following preliminary objections in limine and urge this court to strike out the plaintiff’s amended suit with costs, on grounds that:-(i)The subject matter in this suit relates to the true ownership of the suit properties where the plaintiffs purport that the property known as LR Kajiado/Kaputiei-South/888 (the suit property) was unlawfully transferred to the late Walter Bernard Mukundi Mukuria as evidenced in paragraph 29 (vi) of the plaintiffs’ amended suit.Consequently, the present suit is in flagrant breach of sections 4(2), 7 and 8 of the Limitations of Actions Act.(ii)The suit is further barred under section 3 (Limitation of Proceedings) of the Public Authorities Limitations Act CAP 39 noting that the proceedings have been instituted against the 7th and 8th defendants as representatives of the Kenya Government, more than one year since the cause of action arose.
2. The plaintiffs though given sufficient time to respond to the preliminary objection did not do so. They did not even file written submissions even after directions were given on May 31, 2022. Only the fourth defendant filed written submissions dated July 29, 2022.
3. I have carefully considered the preliminary objection dated February 14, 2022 and I find that it has no merit for the following reasons.
4. Firstly, I find that section 26 of the Limitation of Actions Act extends the running of time to start from the time the mistake or fraud is discovered. In this case, the collusion pleaded in paragraph 24 and the unlawful transaction and dealings pleaded in paragraph 29 of the plaint were only discovered in the year 2018. If time started running in 2018, then the limitation created by sections 4(2), 7 and 8 of the Limitation of Actions Act does not apply in this case.Secondly, section 3 of the Public Authorities Limitation Act does not apply in this case. It applies to actions based on torts and contracts.This case is not based on torts and contract. It is based on breach of trust by trustees. One may say it is based on fraud because fraud is defined as follows in section 2 of the Limitation of Actions Act.'Fraud includes conduct which, having regard to some special relationship between the parties concerned, is an unconscionable thing for one to do towards the other'The use of such words as 'privately colluded and without consultation and consent of members of the second plaintiff.' in paragraph 24 of the plaint and 'unlawful transaction and dealings.' in paragraph 29 denote fraud.For the above stated reasons, the preliminary objection dated February 14, 2022 is dismissed with costs.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 20TH DAY OF DECEMBER, 2022. MN GICHERUJUDGE....................................................