[2021] KEELC 308 (KLR)
The court found that the applicant had established a prima facie case for leave to file suit out of time, as the intended claim is based on alleged fraud and the applicant only discovered the issuance of the disputed title in 2016. The court exercised its discretion under Section 26 of the Limitation of Actions Act...
Source-derived case information.
- Citation
- [2021] KEELC 308 (KLR)
- Parties
- Applicant: Timothy G Woche; Respondent: Soka Gache
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Isiolo
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 001 of 2021
- Procedural Posture
- Miscellaneous Application / Exparte Ruling on Leave to File Suit Out of Time
- Outcome
- Leave granted to applicant to file suit out of time.
- Legal Topics
- Limitation of Actions, Fraudulent Land Transfer, Leave to File Out of Time, Cancellation of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy G Woche
Applicant
Soka Gache
Respondent
Procedural Posture
Miscellaneous Application / Exparte Ruling on Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a suit out of time against the respondent for alleged fraudulent transfer of land.
- 2 Whether the applicant has demonstrated sufficient grounds for extension of time based on discovery of fraud.
Ratio Decidendi
The court found that the applicant had established a prima facie case for leave to file suit out of time, as the intended claim is based on alleged fraud and the applicant only discovered the issuance of the disputed title in 2016. The court exercised its discretion under Section 26 of the Limitation of Actions Act to grant leave, noting that the limitation period may be extended where fraud is discovered after the fact. The court directed that the applicant file the suit within 21 days and ensure the respondent is properly enjoined and served, thereby safeguarding the respondent's right to be heard in the substantive suit.
Court Disposition
Leave granted to applicant to file suit out of time.
Orders
- Leave is granted to the applicant to file suit against the respondent within 21 days of the ruling date.
- The applicant shall ensure that Soka Gache, the registered owner of LR. NO. MARSABIT/JIRME/1413, is enjoined in the suit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT ISIOLO
E.L.C MISC. NO. 001 OF 2021
TIMOTHY G WOCHE..................................................................PLAINTIFF
VERSUS
SOKA GACHE...........................................................................DEFENDANT
RULING
1. This matter has been brought to court vide an exparte Originating Summons dated 26th March, 2021.
The summons states as follows:
EXPARTE ORIGINATING SUMMONS
1. THAT the applicant be and is hereby granted leave by this Honourable court to file suit out of time against SOKA GACHE seeking cancellation of L.R NO. MARSABIT/JIRME/1413 and amalgamation of the same to the original L.P NO. MARSABIT/JIRME 525 respectively.
2. THAT the costs of this application be costs in the main intended suit.
UPON THE GROUNDS THAT:-
a) The intended suit will be based on the (Sic) fraud.
b) That the discovery was in 2008, after the death of the mother (the late NAOMI SUBO STEPHEN GACHE)
c) That in 2009, the intended defendant filed a case against a third party one NASSIR CHUTE which he lost
d) That its in 2016, that the applicant discovered that title deed NO. MARSABIT/JIRME/1413, has been issued to the intended defendant, AND that the said title was hived off from the original Land Reference MARSABIT/JIRME/525 respectively.
e) THAT, the intended suit seeks to have NO. MARSABIT/JIRME/1413, cancelled and the portion amalgamated with original MARSABIT/JIRME/525
f) THAT, the intended suit being based on fraud, the 3 years limitation period is over.
2. I have perused the pleadings and at this exparte stage do allow prayer 1 in the summons and hereby grant leave to the applicant to file suit against the respondent within 21 days of today.
3. The applicant is further directed to ensure that SOKA GACHE the registered owner of LR. NO. MARSABIT/JIRME/1413 is enjoined in this suit.
4. Upon filing the intended suit, the applicant is directed to serve the respondent and SOKA GACHE within 7 days after the suit is filed.
DELIVERED IN OPEN COURT AT ISIOLO THIS 14TH DAY OF DECEMBER, 2021 IN THE PRESENCE OF:
COURT ASSISTANT: BALOZI
ONDARI FOR THE APPLICANT
......................................................
HON. JUSTICE P M NJOROGE
E & L JUDGE, ISIOLO