Tecla Cherono Sirma v Peter Kiplangat Kimetto & another [2018] KEELC 2364 (KLR)
The bottom line
#The Environment and Land Court in Kericho allowed a land recovery suit to proceed because fraud allegations stop Kenya's 12-year limitation clock from running.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit for recovery of land is time barred under section 7 of the Limitation of Actions Act
The suit is not time barred because it is anchored on fraud, and section 26 of the Act postpones the running of time until discovery of the fraud; when the plaintiff discovered the alleged fraud is a matter for trial.
Section 7 bars actions to recover land after twelve years, but section 26(a) provides that where the action is based on the fraud of the defendant or his agent, or the right of action is concealed by fraud, time does not run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. Relying on Ishmael Ithongo v Geoffrey Ithongo Thindiu and Justus Tureti Obara v Peter Koipeitai Nengisoi, the court held that where fraud is alleged, the matter should go to full hearing, and when the plaintiff discovered the fraud is to be ascertained at trial.
Whether the court has jurisdiction to entertain the suit, given the defendant's contention that the complaint is a boundary matter for the boundary disputes tribunal
The court has jurisdiction in the first instance over the dispute, which concerns title to land, under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act.
The defendant argued the dispute concerned demarcated boundaries and belonged to the boundary disputes tribunal. The court held that its jurisdiction is founded on Article 162(2)(b) and section 13(1) of the Environment and Land Court Act, which confer original jurisdiction over disputes relating to the use and occupation of, and title to land, including boundaries. The claim being one for ownership of land allegedly fraudulently sub-divided and transferred, it fell squarely within that jurisdiction.
Legal principles established
#- Where an action for recovery of land is anchored on fraud, the limitation period under section 7 of the Limitation of Actions Act does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud, by virtue of section 26 of the Act.
- The Environment and Land Court has original and appellate jurisdiction over disputes relating to title to land under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act.
Court orders
#- 1.The Preliminary Objection dated 28th March 2016 is dismissed
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Priscillah Kiptoo Karei Dagome & another (Suing as Legal Representatives of Karei Ole Dagome) v Sports Champion Limited [2021] KEELC 3904 (KLR)[2021] KEELC 3904 (KLR)15 Mar 2021
- Mugo Muruachimba v Moffat Nyaga Kagau & 2 others [2020] KEELC 549 (KLR)[2020] KEELC 549 (KLR)22 Oct 2020
- Stanley Mwangi Gachugu & Another (trading as Vinco Footwear) v Barclays Bank of Kenya Limited[2019] KEHC 3925 (KLR)4 Oct 2019applied
Cite this brief
#Cite this brief
Caselaw, "Tecla Cherono Sirma v Peter Kiplangat Kimetto & another [2018] KEELC 2364 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2364/eng@2018-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.