Daniel Okasisi Olegerea & another v Barasa Ekapoloni Auku [2015] KEELC 1 (KLR)

The bottom line

Kenya's High Court ruled that land fraud claims run from discovery of the fraud, and defendants can't raise time limits they never pleaded.

What this practically means

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Executive summary

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The defendant filed a preliminary objection on 2nd June 2015 under section 7 of the Limitation of Actions Act (Cap 22), contending that the plaintiffs' suit filed in 2014 was time-barred, having been filed without leave, and sought that it be struck out with costs. The defendant argued that time began to run either in 1985 when the plaintiffs left the land or in 1987 when he became registered owner, so twelve years had lapsed. The plaintiffs countered that their claim was founded on the tort of fraud, not adverse possession, that the fraud was discovered in 2013, and that in fraud-based land claims time runs from discovery of the fraudulent registration, citing Javed Gabal Rahim v Sambu. The court agreed that the claim was based on fraud and held that the cause of action accrues on discovery of the fraud. It further held that a preliminary objection must be a pure point of law argued on the assumption that the opponent's pleaded facts are correct, citing Muiruri v Kimemia and Sirma v Kiprono; here all facts were disputed. Relying on Achola v Hongo, the court held that a defendant who has neither pleaded limitation in his defence nor intimated a preliminary objection on that issue cannot raise it by way of preliminary objection. The preliminary objection was accordingly found to have no merit and dismissed with costs to the plaintiffs. The suit itself proceeds to trial.

Key legal issues

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01

Nature and scope of a preliminary objection

Holding

A preliminary objection is in the nature of a demurrer and must be a pure point of law argued on the assumption that the other side's pleaded facts are correct; it fails where facts are disputed or must be ascertained

Reasoning

The court restated the demurrer principle, citing Muiruri v Kimemia and Sirma v Kiprono. Since the defendant denied the plaintiffs' entire claim and all facts were in dispute, the objection on limitation could not be sustained as a pure point of law.

p. 2

02

Accrual of a claim founded on fraud

Holding

The claim being founded on the tort of fraud, not adverse possession, time runs from discovery of the fraud (allegedly 2013), so the suit filed in 2014 was not time-barred

Reasoning

The court agreed with the plaintiffs that the claim was in fraud. It adopted the position in Javed Gabal Rahim that in claims of fraudulent registration of land, limitation of three years runs from discovery of the registration/fraud.

p. 1

03

Raising limitation by preliminary objection without pleading it

Holding

A defendant who has not pleaded limitation in the defence, and did not intimate a preliminary objection on it, may not raise the issue by preliminary objection

Reasoning

Following Achola v Hongo, where the High Court was held wrong to allow an unpleaded limitation issue via preliminary objection, the court held the present defendant, whose defence did not raise limitation, could not do so here.

p. 2

Legal principles established

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Where a claim is based on fraudulent registration of land, the cause of action accrues when the fraud is discovered
A preliminary objection must raise a pure point of law on assumed pleaded facts; it cannot be raised where facts must be ascertained or discretion exercised
A party who has not pleaded limitation in its defence may not rely on it to sustain a preliminary objection

Court orders

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1.The preliminary objection dated 2nd June 2015 is found to have no merit and is dismissed
2.The defendant to pay the plaintiffs' costs of the preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Related briefs

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Cite this brief

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Cite this brief

Caselaw, "Daniel Okasisi Olegerea & another v Barasa Ekapoloni Auku [2015] KEELC 1 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/1/eng@2015-12-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.