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ELCStruck OutNot stated in judgment (ELC Suit, Nyahururu)· [2018] KEELC 4897 (KLR)

Ilmisigiyo Group Ranch v Lemiyon Keparmarai & 8 others [2018] KEELC 4897 (KLR)

Environment and Land Court
5 November 2018
4,568 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute was struck out because the group ranch waited eight years after discovering alleged fraud, missing the three-year legal deadline for suing.

What this practically means

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Executive summary

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The Plaintiff, a group ranch registered under the Land (Group Representatives) Act, sued in 2015 claiming that parcels Samburu/Lodokejek 10, 33 (and 8) and 31, registered in the names of the 1st, 2nd (deceased) and 6th Defendants, were fraudulently carved out of its traditional land during the 1972 land adjudication. During the hearing in February 2018 it emerged that the 2nd Defendant had died in 1995, prompting an amendment of the plaint to substitute his legal representative. The Defendants filed applications seeking striking out of the suit as a gross abuse of process, principally on the grounds of limitation and abatement. The court framed two issues: whether the suit against the 2nd deceased Defendant was fatally defective, and whether the whole suit was statute barred. It held the misjoinder of the deceased was curable under Order 1 Rule 10(2) and the Civil Procedure Act's inherent powers. On limitation, however, the court found the fraud claim governed by section 4(2) of the Limitation of Actions Act, with the proviso to section 26(a) starting time from discovery; the Plaintiff pleaded discovery in 2007 but filed in 2015, long after the three-year period expired in 2010. Additionally, any claim to recover the land exceeded the twelve-year period under section 7. Limitation being substantive law went to jurisdiction, and the overriding objective could not displace it. The applications of 20th February 2018 and 20th April 2018 were allowed, the Plaintiff's suit struck out with costs to the 1st, 2nd (deceased's representative), 5th, 6th and 7th Defendants.

Key legal issues

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01

Whether the suit against the 2nd deceased Defendant was fatally defective for abatement/misjoinder

Holding

Not fatally defective; the misjoinder was curable by amendment of the plaint to substitute the legal representative, which the court had already permitted.

Reasoning

The 2nd Defendant died before suit was instituted, so Order 24 Rule 4 (death during suit) did not apply. Leave to amend was granted under Article 159(2)(d) and sections 1A and 3A of the Civil Procedure Act, and under Order 1 Rule 10 the court may add a necessary party. Following J M K v M W M, amendments should be freely allowed absent prejudice not compensable in costs. The objection therefore failed.

p. 4
02

Whether the whole suit was statute barred

Holding

Yes. The fraud claim accrued on discovery in 2007; the 3-year period expired in 2010, and the land-recovery claim exceeded the 12-year limit from registration; the 2015 suit was time barred and the court lacked jurisdiction.

Reasoning

The plaintiff pleaded fraud as the foundation of the claim; section 4(2) of the Limitation of Actions Act allows three years for tort claims, and section 26(a) defers accrual to discovery of fraud. Discovery was pleaded as 2007, yet suit was filed in 2015. Separately, under section 7, an action to recover land must be brought within twelve years of accrual; the defendants' titles were registered in 1976, 1978 and 2005. No extension of time was shown. Limitation being substantive law, the overriding-objective provisions cannot displace it.

p. 5

Legal principles established

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  • Limitation is a substantive law; where a claim is statute barred the court has no jurisdiction and must take no further step.
  • Where an action is based on fraud, limitation runs from discovery of the fraud or when it could with reasonable diligence have been discovered.
  • Misjoinder of a deceased defendant is curable by amendment under Order 1 Rule 10(2) and does not defeat the suit.

Court orders

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  1. 1.The Applications dated 20th February 2018 and 20th April 2018 by the 2nd, 5th, 6th and 7th Defendants are allowed.
  2. 2.The Plaintiff's suit is struck out.
  3. 3.Costs to the 1st, 2nd (deceased's representative), 5th, 6th and 7th Defendants.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 3(1)
  • Limitation of Actions ActSection 22
  • Limitation of Actions ActSection 26(a) (referred to as Section 26)
  • Public Authorities Limitation ActSection 3
  • Public Authorities Limitation ActSection 2
  • Civil Procedure ActSections 1A, 1B, 3A and 3; also Section 5
  • Civil Procedure RulesOrder 1 Rule 9; Order 1 Rule 10; Order 7 Rule 17(2); Order 11; Order 24 Rule 4 (and 4(3)); Section 24 Rule 4 (as cited by defendants)
  • Constitution of KenyaArticle 159 (and 159(2)(d))
  • Land (Group Representatives) ActNot specified (registration of the Plaintiff as a Group Ranch)

Cases cited (8)

  • Mehta vs Shah
    (1965) E.A 321
  • Owners of the Motor Vessel Lillian S vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Kenya Bus Service Ltd vs Minister of Transport
    Civil [2012] eKLR
  • Ahmed Said Mohammed vs Municipal Council of Garissa & Another
    [2014] eKLR
  • J M K v M W M & another
    [2015] eKLR
  • Central Kenya Ltd. v. Trust Bank & 4 Others
    CA No. 222 of 1998
  • Peter Kimani Njenga v Mugo Kamabuni Mugo & 3 others
    [2018] eKLR
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction (suit filed in the ELC; court found it lacked jurisdiction because the claim was statute barred)

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, "Ilmisigiyo Group Ranch v Lemiyon Keparmarai & 8 others [2018] KEELC 4897 (KLR)", Case Analysis (2018). Not stated in judgment (ELC Suit, Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4897/eng@2018-11-05

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