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ELCOther· [2019] KEELC 1258 (KLR)

Joseph Kasyo Kareiya v Pj Dave Flowers Limited & 3 others [2019] KEELC 1258 (KLR)

Environment and Land Court
28 October 2019
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a delayed land fraud claim to proceed because fraud discovered in a 2017 land search restarts the limitation clock.

What this practically means

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Executive summary

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The 1st and 2nd Defendants filed Notices of Preliminary Objection dated 1st November 2018 and 31st October 2018 respectively, contending that the Plaintiff's suit over land parcel Kajiado/Kaputiei North/816 was statute barred under sections 7 and 26 of the Limitation of Actions Act, disclosed no privity of contract between the Plaintiff and the 1st Defendant, and was an abuse of court process. The Plaintiff opposed, stating he discovered the alleged fraud on 30th July 2017 during a search at the Kajiado Lands Office and filed suit on 27th April 2018, relying on section 26 and asserting the court's jurisdiction over a claim for rectification of the register. The court framed a single issue: whether the suit was statute barred. Applying section 7 with section 26, and the authorities on pleading and proving fraud (R. G. Patel v. Lalji Makanji; Vijay Morjaria; UCB v Mukoome Agencies), the court held that the Plaintiff had pleaded particulars of fraud which could only be proved by viva voce evidence, and that section 26 postponed limitation until discovery of the fraud in 2017. The limitation objection was premature. Privity of contract could likewise not be determined without evidence. The court held it had jurisdiction under section 13 of the Environment and Land Court Act as the dispute revolved around title to land, and that the suit was not an abuse of process. Both preliminary objections were disallowed, costs were reserved to the cause, and parties were directed to comply with Order 11 and set the suit down for hearing on its merits.

Key legal issues

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01

Whether the suit is statute barred under section 7 of the Limitation of Actions Act

Holding

Not statute barred; section 26 postpones limitation where fraud is alleged and discovered later, making the objection premature

Reasoning

The Plaintiff pleaded particulars of fraud in paragraph 6 of the Plaint and claimed discovery on 30th July 2017 during a land search. Section 26 provides that limitation does not begin to run until the plaintiff has discovered the fraud. Such fraud cannot be proved without viva voce evidence, so the objection is premature.

p. 2
02

Whether there is privity of contract between the Plaintiff and the 1st Defendant

Holding

This cannot be determined at interlocutory stage without evidence

Reasoning

The 1st Defendant averred no privity of contract existed. The court held that this averment can only be proven with proper evidence adduced, which is unavailable at the preliminary objection stage, and therefore declined to determine it.

p. 2
03

Whether the Court has jurisdiction over the dispute

Holding

The Court has jurisdiction under section 13 of the Environment and Land Court Act since the dispute revolves around title to land

Reasoning

The dispute concerns title to the suit land, including a claim for rectification of the register. Section 13 of the Environment and Land Court Act confers jurisdiction on the Court to hear and determine disputes relating to title to land, so the jurisdictional limb of the objection fails.

p. 2
04

Whether the suit is an abuse of court process

Holding

The suit is not an abuse of court process

Reasoning

Having found the suit not statute barred and that triable issues arise from the pleaded fraud, the court held the claim is not an abuse of process and should proceed to full hearing on its merits.

p. 2

Legal principles established

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  • Allegations of fraud must be strictly proved; the standard is more than a mere balance of probabilities
  • Where fraud is alleged raising a triable issue, the matter should proceed to full hearing rather than be dismissed at interlocutory stage

Court orders

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  1. 1.The 1st Defendant's Notice of Preliminary Objection dated 1st November, 2018 is disallowed
  2. 2.The 2nd Defendant's Notice of Preliminary Objection dated 31st October, 2018 is disallowed
  3. 3.Costs will be in the cause
  4. 4.Parties to comply with Order 11 and set the suit down for hearing on its merits

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 26
  • Environment and Land Court Actsection 13
  • Civil Procedure RulesOrder 11

Cases cited (12)

  • Beatrice Wambui Kiarie & 2 Others V Beatrice Wambui Nganaga & 9 others
    (2018) eKLR
  • Vijay Morjaria V Nansingh Madhusingh Darbar & Another
    (2000) eKLR
  • Aineah Likuyani Njirah V Aga Khan Health Services
    (2013) eKLR
  • Agricultural Finance Corporation V Lengatia Ltd
    1982 – 88 1KAR 772
  • Owners of the Motor Vessel 'Lillian S' Vs Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Stephen Somek Takwenyi & Another Vs David Mbuthia Githare & 2 Others
    Nairobi (Milimani) HCCC No. 363 of 2009
  • Letore Ntirori & Anor Vs Zacharia Manyura
    Nrb ELC No. 1376 of 2013
  • Bosire Ogero v Royal Media Services
    (2015) eKLR
  • Hilton v Sultan S. Team Laundry
    (1946) 1 KLR 81
  • Grace Adhiambo Ogaga (suing as the legal rep of the estate of Trufena Kemunto Ogaga) V William Ochieng Ogaga & 3 Others
    MIGORI ELC No. 290 OF 2017
  • R. G. Patel v. Lalji Makanji
    [1957] EA 314
  • UCB Vs Mukoome Agencies
    (1982) HCB22
Jurisdiction invoked
Section 13 of the Environment and Land Court Act

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, "Joseph Kasyo Kareiya v Pj Dave Flowers Limited & 3 others [2019] KEELC 1258 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1258/eng@2019-10-28

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