Benjamin Mutuku Mutwa v Benard Maithya Nthenge & another [2019] KEELC 74 (KLR)
The bottom line
#A Makueni court let a 1977 land sale claim go to trial because fraud was alleged, and stopped the new title holder from interfering with the land.
What this practically means
#Executive summary
#Key legal issues
#Limitation of actions - whether a 1977 contract suit is statute barred
The suit is not statute barred at the interlocutory stage because the Plaintiff took possession in 1977 after paying the purchase price, and allegations of fraud in the registration of the 2nd Defendant raise the section 26 proviso requiring trial.
The court accepted that a 38-year-old contract may prima facie be time barred, but the Plaintiff demonstrated possession from 1977 to about 2015, and the 1st Defendant corroborated this. Both Plaintiff and 1st Defendant questioned how the 2nd Defendant acquired title, engaging the fraud proviso to section 26 of the Limitation of Actions Act, which requires the matter to go to full hearing.
Land Control Act consent - whether lack of consent is fatal
The court declined to strike out the suit on the Land Control Act ground at the interlocutory stage, since fraud was alleged and the matter required substantive hearing.
The 2nd Defendant argued that failure to obtain Land Control Board consent within six months rendered the contract void. The court found that the dispute over how the 2nd Defendant was registered as proprietor, and the fraud allegations, required a full trial rather than striking out the plaint on a point of law.
Interlocutory injunction - Giella principles
The Plaintiff established a prima facie case with probability of success, potential irreparable harm, and the balance of convenience tilted in his favour; a temporary injunction was granted.
Affidavit evidence showed the Plaintiff took possession in May 1977 after paying the full purchase price and remained in possession until 2015. The 1st Defendant supported the Plaintiff's account. Irreparable harm was inferred from the risk that the 2nd Defendant, against whom fraud was alleged, could dispose of the property to third parties who might acquire valid titles as purchasers for value without notice.
Striking out plaint for lack of refund prayer
The omission of a prayer for refund of the purchase price is curable by amendment and does not justify striking out the plaint.
The 2nd Defendant argued the suit should fail because the Plaintiff did not plead refund of the purchase price in the alternative. The court held, consistent with Bogani Properties Ltd v Fredrick Wairegi Karuri, that the defect could be cured by amendment and that dismissal would push the Plaintiff from the seat of justice.
Legal principles established
#- Where fraud is alleged in the acquisition or registration of land, the suit must proceed to full trial and limitation does not begin to run until the fraud is discovered or could with reasonable diligence have been discovered.
- Omission of a prayer for refund of the purchase price is a curable defect and not a ground for striking out a plaint at the interlocutory stage.
- The Giella principles apply to interlocutory injunctions in land disputes: prima facie case, irreparable harm not compensable in damages, and balance of convenience; fraud allegations may establish irreparable harm.
Court orders
#- 1.The 2nd Defendant's notice of motion application dated 4th July, 2018 (to strike out the amended plaint) is dismissed with costs to the Plaintiff
- 2.The Plaintiff's notice of motion application dated 22nd November, 2017 is allowed in terms of prayers 2, 3 and 4
- 3.A temporary injunction is issued restraining the 2nd Defendant, his servants or agents from trespassing on land parcel No. Makueni/Unoa/1901, from continuing to build a toilet on the suit premises, or in any other manner interfering with the suit premises pending the hearing and determination of the suit
- 4.Costs of the Plaintiff's application to be borne by the Respondents (prayer 4 allowed)
- Jurisdiction invoked
- Inherent jurisdiction under Sections 3 and 3A of the Civil Procedure Act and Order 40 and Order 51 of the Civil Procedure Rules (injunction application); Order 2 Rule 15 of the Civil Procedure Rules (striking-out application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Mutuku Mutwa v Benard Maithya Nthenge & another [2019] KEELC 74 (KLR)", Case Analysis (2019). Not stated in the judgment (ruling on Plaintiff's application dated 22/11/2017 and 2nd Defendant's application dated 04/07/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/74/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.