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ELCOther· [2018] KEELC 1415 (KLR)

Andrew Muia Musyoki Ngau & 2 others v Joseph Kiprotich Koskei [2018] KEELC 1415 (KLR)

Environment and Land Court
11 October 2018
CYC. Yano
1,504 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 Plaintiffs sued the 1st to 20th Defendants by plaint dated 13th May 2014, seeking damages, a declaration of vicarious liability of the Government of Kenya, and costs, alleging that the defendants fraudulently induced them into two land purchase transactions with the 8th Defendant. The 1st to 7th Defendants denied the claim and raised a preliminary objection seeking striking out of the suit against them on the ground that it offended Section 3 of the Public Authorities Limitation Act, Cap 39, which requires tort claims against the Government and its officers to be filed within twelve months, the cause of action having arisen in 2012. They relied on Kateregga v Attorney General and Iga v Makerere University. The Plaintiffs countered that they discovered the fraud on 21st and 22nd May 2013, less than twelve months before filing, relying on Kenya Pipeline Company Ltd v Redate Investments and Municipal Council of Garissa v Ahmed Siad Mohamed on the effect of Section 26 of the Limitation of Actions Act on fraud claims. C. Yano, J held that while Cap 39 prescribes a twelve-month limitation period, it incorporates Part III of the Limitation of Actions Act, so time runs from discovery of fraud. Whether and when the fraud was discovered were matters of fact to be proved at trial; determining them would convert the objection into a mini-trial, so it was not a pure point of law. The preliminary objection was dismissed, the suit was not struck out, and costs were awarded in the cause.

Key legal issues

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01

Applicability of the Public Authorities Limitation Act to the suit

Holding

The Act applies to proceedings founded on tort against the Government and public officers, prescribing a twelve-month limitation period; but Part III of the Limitation of Actions Act (including Section 26 on fraud) applies to it.

Reasoning

The court examined Section 3(1) of Cap 39 and Section 42 of the Limitation of Actions Act. Relying on the Court of Appeal in Richard Oduol Opole, it found that Section 6 of the Public Authorities Limitation Act incorporates Part III of the Limitation of Actions Act, so the fraud-discovery provision in Section 26 governs when time begins to run.

p. 2
02

Whether the discovery-of-fraud question can be resolved at the preliminary stage

Holding

No - it is a matter of fact to be proved at trial; the objection was therefore not a pure point of law.

Reasoning

The plaintiffs asserted they discovered the fraud on 21st and 22nd May 2013, less than twelve months before filing. The court held that determining when the cause of action arose would require investigating evidence, converting the objection into a mini-trial, and such issues are fit for the substantive suit.

p. 2

Legal principles established

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  • A preliminary objection that requires investigation of facts is not a pure point of law and cannot succeed
  • The Public Authorities Limitation Act incorporates Part III of the Limitation of Actions Act, including Section 26 on fraud, so time runs from discovery of fraud
  • Where fraud is alleged, the proper course is to allow the parties to proceed to trial

Court orders

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  1. 1.Dismissed the preliminary objection
  2. 2.Declined to strike out or dismiss the suit as against the 1st to 7th defendants
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Public Authorities Limitations Act, Cap 39Section 3(1), Section 2(1), Section 6
  • Limitation of Actions Act, Cap 22Section 42, Section 26, Section 31, Section 22, Section 27, Section 4(2)
  • Land Registration ActSection 103

Cases cited (5)

  • Kateregga –v- Attorney General
    (1973) EA 286
  • Iga –v- Makerere University
    (1972) EA 65
  • Kenya Pipeline Company Ltd –v- Redate Investments Limited & 3 Others
    (2013) eKLR
  • Municipal Council of Garissa –v- Ahmed Siad Mohamed and Another
    HCCC No.7 of 2011 (Garissa)
  • Richard Oduol Opole –v- Commissioner of Lands & 2 Others
    (2015) eKLR
Jurisdiction invoked
Original civil suit (tort and land transactions); not expressly stated in the judgment

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, "Andrew Muia Musyoki Ngau & 2 others v Joseph Kiprotich Koskei [2018] KEELC 1415 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1415/eng@2018-10-11

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