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ELCStruck OutKisii ELC Case (plaint dated 10th October 2014; number not stated in judgment)

Joel Oichoe Oisebe v Agriculture, Fisheries and Food Authority & 9 others [2017] KEELC 2417 (KLR)

Environment and Land Court
12 May 2017
JMJ. M. Mutungi
2,617 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land fraud claim because the family waited eight years after learning of the disputed land transfer to sue.

What this practically means

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Executive summary

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The plaintiff, as holder of letters of administration intestate to the estate of the late Shadrack Oichoe Oisebe, sued over LR No. Gesima Settlement Scheme/234, alleging that between 2003 and 2006 the defendants fraudulently caused the parcel, allotted to the deceased in 1964, to be transferred and registered in the name of the late Sweney Manasseh Oisebe, the plaintiff's step brother. He sought a declaration that the 2006 transfer was a nullity, cancellation of the registration and registration in his own name. The 5th to 10th defendants applied under Order 2 Rule 15 of the Civil Procedure Rules and Section 4 of the Limitation of Actions Act to strike out the suit, contending the plaintiff knew of the alleged fraud by 28th September 2006 when he lodged a caution, so the three-year limitation period had long expired. The plaintiff countered that he only discovered the fraud on 13th November 2013 when the CID helped him access documents from the lands office. The court held that the plaintiff knew the register entries by September 2006 and, following the Court of Appeal decision in the Sambu case, did not need the registrar's documents to assert his claim; the suit filed in October 2014 was therefore statute barred and the plaintiff non suited. The court struck out the suit in its entirety and, given its family-dispute character, ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.When did the plaintiff make discovery of the alleged fraud, and is the suit therefore barred under Section 4(2) of the Limitation of Actions Act?
  2. 2.Whether the plaint as amended twice without leave of the court ought to be struck out (not determined as limitation was dispositive)

Key legal issues

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01

Limitation of actions in fraud-based land claims

Holding

The suit is statute barred because the plaintiff knew of the alleged fraud by 28th September 2006 when he lodged a caution, yet filed suit only in October 2014

Reasoning

The cause of action arose in 2006 at the latest. Section 4(2) of the Limitation of Actions Act requires tort actions founded on fraud to be brought within three years of discovery. The plaintiff registered a caution and his advocates wrote to the land registrar in September 2006, showing knowledge of the register entries. Following the Sambu decision, he needed no further documents to assert his claim. Failure to sue within three years, without an extension application under Sections 27 and 28, renders the suit time barred.

p. 4
02

Amendment of plaint without leave

Holding

Not determined; the limitation finding disposed of the matter

Reasoning

The court declined to rule on whether the amended plaints filed without leave were void, holding that the limitation finding went to jurisdiction and was sufficient to dispose of the matter. The judge noted that, absent the limitation bar, the overriding objective would have favoured sustaining the amended plaint with liberty to the defendants to amend their defences.

p. 4

Legal principles established

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  • Where a claim is founded on fraud, the three-year limitation period runs from the date the plaintiff discovered the fraud, and discovery of the register entries suffices without needing documents held by the land registrar

Court orders

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  1. 1.The plaintiff's suit is struck out in its entirety
  2. 2.Each party shall bear their own costs of the application and the struck out suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court Act, 2011; Civil Procedure Act (Sections 1A, 1B, 3A) and Civil Procedure Rules on original civil suit

Relief refused

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Plaintiff's claim for declaration that the transfer of the suit land to Sweney Manasseh Oisebe was a nullity, cancellation of registration and registration in plaintiff's name

Suit filed outside the three-year limitation period after discovery of the fraud; plaintiff non suited

p. 4

Costs

Each party shall bear their own costs of the application and the struck out suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having come to the conclusion that the plaintiff's suit is statute barred by reason of having been filed outside the limitation period, I accordingly order that the suit be and it is hereby struck out in its entirety.
p. 5disposition - striking out for limitation
In the instant matter it is my finding and holding that the plaintiff's suit is statute barred and that the plaintiff is non suited.
p. 4limitation - suit statute barred
Each party shall bear their own costs of the application and the struck out suit.
p. 5costs
Where there is cause for a party to be allowed to bring a suit outside the limitation period an appropriate application for extension of the period may be made under Sections 27 and 28 of the Limitation of Actions Act.
p. 4extension of limitation period

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, "Joel Oichoe Oisebe v Agriculture, Fisheries and Food Authority & 9 others [2017] KEELC 2417 (KLR)", Case Analysis (2017). Kisii ELC Case (plaint dated 10th October 2014; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2417/eng@2017-05-12

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