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ELCDismissedNot stated in the judgment (application dated 10/1/2018 within a land suit)· [2018] KEELC 3535 (KLR)

Ebby Musimbi Mwenesi v Saul Egunza Bunyali & 2 others [2018] KEELC 3535 (KLR)

High Court of Kenya
23 April 2018
MNMwangi Njoroge
1,267 words in judgment
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The bottom line

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Kenya's High Court ruled that fraud claims over land start the 12-year limitation clock only when the fraud is discovered, so the case proceeds to trial.

What this practically means

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Executive summary

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The 1st, 2nd and 3rd defendants applied by notice dated 10/1/2018, supported by an affidavit of the 2nd defendant, to strike out the plaintiff's suit as time barred, contending that the right of action accrued in 1995, some 16 years before filing, exceeding the 12-year limitation period for actions to recover land. The plaintiff opposed, swearing that she only discovered the fraud alleged in the plaint in 1999 and that when she received a letter of the Director of Land Adjudication dated 26/2/1999 confirming apparent irregularity or fraud in the transfer of the suit land was a matter of evidence. The defendants argued that the existence of that letter fixed her with knowledge on or before 26/2/1999, so the suit ought to have been filed by 26/2/2011; it was in fact filed on 7/3/2011. Mwangi Njoroge J held that Section 7 of the Limitation of Actions Act prescribes 12 years from accrual, but where fraud is pleaded time runs from discovery of the fraud, per the proviso to Section 26(a), adopting the decisions in Justus Tureti Obara v Peter Koipeitai Nengison and Philip Kimutai Langat v John Kibet Maina cited by the plaintiff. The court found the defendants had not established that the plaintiff knew of the fraud before 26/2/1999 or when she received the letter, which was not addressed to her. The date of discovery was a matter for the trial. The application was dismissed with costs to the plaintiff, and the suit allowed to proceed to hearing.

Key legal issues

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01

Whether the suit for recovery of land founded on fraud was barred by the 12-year limitation period under Section 7 of the Limitation of Actions Act

Holding

The application to strike out failed; whether the suit was filed within time is a matter to be determined at the hearing on evidence.

Reasoning

Section 7 prescribes 12 years from accrual of the cause of action, but where fraud is pleaded the proviso to Section 26(a) postpones the start of time until the plaintiff discovered or could with reasonable diligence have discovered the fraud. The 26/2/1999 letter confirming apparent irregularity or fraud was not addressed to the plaintiff, so it is not plausible she discovered the fraud before receiving it. The defendants did not establish the date of receipt or prior knowledge.

p. 1

Legal principles established

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  • Where a claim for recovery of land is based on fraud, time begins to run from the date of discovery of the fraud, and the date of discovery is a matter of evidence at the trial.

Court orders

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  1. 1.Dismissal of the defendants' application dated 10/1/2018 seeking to strike out the suit as time barred
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions Act, Cap. 22, Laws of KenyaSection 7
  • Limitation of Actions Act, Cap. 22, Laws of KenyaSection 26(a) (proviso)

Cases cited (2)

  • Justus Tureti Obara -vs- Peter Koipeitai Nengison
  • Philip Kimutai Langat -vs- John Kibet Maina
    Kericho High Court Civil Case 100 of 20105
Jurisdiction invoked
Inherent jurisdiction of the High Court over a suit for recovery of land; application under the Limitation of Actions Act (Cap. 22)

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, "Ebby Musimbi Mwenesi v Saul Egunza Bunyali & 2 others [2018] KEELC 3535 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 10/1/2018 within a land suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3535/eng@2018-04-23

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