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ELCDismissedNot stated (Murang'a; suit filed 16th August 2016)· [2017] KEELC 1662 (KLR)

Mwenjeri Kibuba v Wilfred Warui Kibuba & 2 others [2017] KEELC 1662 (KLR)

High Court of Kenya
13 July 2017
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court ruled that a limitation defence based on fraud needs evidence at trial, so it cannot be decided early as a preliminary objection.

What this practically means

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Executive summary

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The Plaintiff sued the 1st Defendant, his step-brother, on 16th August 2016 seeking a declaration that the subdivision of Loc.14/Kairo/885 into Loc.14/Kairo/1193 and 1194 was illegally and fraudulently done, cancellation of the resulting title deeds, rectification of the register and reinstatement of his name so as to repossess 2.5 acres alleged to be in excess of the Defendant's entitlement. The 1st Defendant filed a defence and a Preliminary Objection contending that the claim was res judicata and statute barred under sections 7 and 26 of the Limitation of Actions Act. Although the objection had been withdrawn on the record on 4th April 2017, succeeding counsel on both sides, unaware of that withdrawal, proceeded to litigate it by consent; the court set aside the withdrawal, deemed the objection properly on record, and heard it. The res judicata limb was not pursued. On limitation, the court held that the objection could not succeed as a preliminary objection because, with fraud pleaded under section 26, determining when time began to run and when the Plaintiff discovered the fraud would require evidence at trial. Relying on Mukisa Biscuit and Oraro vs Mbaja, the court dismissed the Preliminary Objection with costs to the Plaintiff, leaving the suit to proceed to full trial.

Key legal issues

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01

Whether a limitation defence premised on discovery of fraud can be determined as a preliminary objection

Holding

It cannot; the objection fails as it requires evidence to establish when the cause of action accrued and when the Plaintiff discovered the fraud

Reasoning

Section 7 bars actions to recover land after twelve years, but section 26 suspends limitation until the plaintiff discovers, or with diligence could have discovered, fraud or mistake. Since the Plaintiff pleaded fraud, the court must ascertain when the fraud was discovered - whether on the December 1982 subdivision or later. That is a question of fact ascertainable only at trial, so the objection is not a pure point of law and is dismissed.

p. 3
02

Res judicata limb of the Preliminary Objection

Holding

Not pursued; the Defendant's counsel elected not to pursue it, leaving only the limitation limb for determination

Reasoning

The Defendant's counsel elected not to pursue the res judicata ground, confining submissions to the limitation issue under sections 7 and 26 of the Limitation of Actions Act. No determination was therefore made on res judicata.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law, pleaded and agreed by both sides, not requiring evidence of facts or the exercise of discretion

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs to the Plaintiff
  2. 2.The order recording withdrawal of the Preliminary Objection was set aside and the objection deemed properly on record before hearing

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 26
  • Limitation of Actions ActCap 22

Cases cited (4)

  • Republic vs The Principal Magistrate P Ngare Gesora; Exparte, Nation Media Group Ltd & Others
    High Court at Nairobi Judicial Review Miscellaneous Civil Application Number 321 of 2011
  • Anaclet Kalia Musau (suing on behalf of the estate of Vincent Mangalo Kalia) vs The Honourable Attorney General & 2 others
    High Court of Kenya at Nairobi, Civil Case Number 30 of 2013
  • Mukisa Biscuit Company Vs Westend Distributors Limited
    (1969) EA 696
  • Oraro vs. Mbaja
    [2005] 1 KLR 141
Jurisdiction invoked
Original civil jurisdiction over the suit; preliminary objection under the Limitation of Actions Act, Cap 22 (sections 7 and 26)

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, "Mwenjeri Kibuba v Wilfred Warui Kibuba & 2 others [2017] KEELC 1662 (KLR)", Case Analysis (2017). Not stated (Murang'a; suit filed 16th August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1662/eng@2017-07-13

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