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ELCAllowedKerugoya High Court Succession Cause No. 497 of 2014 / Originating Summons dated 15th May 2015· [2015] KEELC 40 (KLR)

Symon Mubika Maciura v Attorney General & 8 others [2015] KEELC 40 (KLR)

Environment and Land Court / High Court
4 December 2015
BOB.N. Olao
1,753 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, as legal representative of the Estate of his late father Mariungu Thiba (registered proprietor of parcel MWERUA/KITHUMBU/89), filed an Originating Summons on 18th May 2015 challenging the subdivision of that parcel between 1983 and 1989 into portions registered to various defendants, alleging fraud by strangers who evicted him in 2013. After an interlocutory judgment was set aside by consent, the 1st and 2nd defendants sought to strike out the suit as time-barred. The plaintiff filed a Notice of Motion dated 7th August 2015 under Article 159(2) of the Constitution, Sections 27 and 28 of the Limitation of Actions Act and Order 37 Rules 6 and 7 of the Civil Procedure Rules, seeking extension of time and a declaration that the Originating Summons be deemed duly filed. The 1st and 2nd defendants opposed, contending the supporting affidavit breached Order 2 Rule 6 and that the suit was also barred by Section 6 of the Public Authorities Limitations Act. Relying on the Court of Appeal decision in Richard Oduol Opole v Commissioner of Lands, Justice B.N. Olao held that the Public Authorities Limitation Act incorporates Section 26 of the Limitation of Actions Act, permitting actions founded on fraud beyond the ordinary limitation period. Since the plaintiff discovered the fraud in March 2015 upon official searches, the suit filed in May 2015 was within time. The court found no defect in the affidavit and, invoking Article 159(2), allowed the application, deemed the Originating Summons as duly filed, and directed costs in the cause.

Key legal issues

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01

Extension of time to file Originating Summons based on fraud

Holding

The application is merited; the Originating Summons is deemed duly filed because limitation began running only upon discovery of the fraud in March 2015.

Reasoning

The court found the plaintiff only discovered the fraudulent subdivision in 2013 and obtained official searches in March 2015. Under Section 26 of the Limitation of Actions Act, time does not begin to run until discovery of fraud. Section 7 allows 12 years for recovery of land; thus the suit filed in May 2015 was within time. The Public Authorities Limitation Act incorporates the same fraud exception per the Court of Appeal authority.

p. 3
02

Sufficiency of the supporting affidavit under Order 2 Rule 6

Holding

No defect discerned in the affidavit; the application is not fatally incompetent.

Reasoning

The court held that the affidavit deponed on facts explaining the delayed filing. The court further noted that pleadings can be amended at any stage of trial under Order 8 of the Civil Procedure Rules and declined to make adverse orders at this early stage.

p. 2

Legal principles established

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  • Where a cause of action is founded on fraud, limitation does not begin to run until the plaintiff discovers the fraud.
  • The Public Authorities Limitation Act incorporates Part III of the Limitation of Actions Act, permitting land recovery claims beyond the statutory period where fraud is pleaded.

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 7th August 2015 is allowed.
  2. 2.The Originating Summons dated 15th May 2015 and filed on 18th May 2015 is deemed as duly filed.
  3. 3.Costs shall be in the cause.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Limitation of Actions ActSections 7, 26, 27, 28
  • Public Authorities Limitations ActSection 6
  • Civil Procedure RulesOrder 2 Rule 6, Order 8, Order 37 Rules 6 and 7

Cases cited (1)

  • RICHARD ODUOL OPOLE VS THE COMMISSIONER OF LANDS AND TWO OTHERS
    C.A Civil Appeal No. 285 of 2007 (Kisumu)
Jurisdiction invoked
Article 159(2) of the Constitution; Sections 27 and 28 of the Limitation of Actions Act; Order 37 Rules 6 and 7 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Symon Mubika Maciura v Attorney General & 8 others [2015] KEELC 40 (KLR)", Case Analysis (2015). Kerugoya High Court Succession Cause No. 497 of 2014 / Originating Summons dated 15th May 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/40/eng@2015-12-04

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