Joseph Kasyo Kareiya v Pj Dave Flowers Limited & 3 others [2019] KEELC 1258 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is statute barred under section 7 of the Limitation of Actions Act
Not statute barred; section 26 postpones limitation where fraud is alleged and discovered later, making the objection premature
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.
Whether there is privity of contract between the Plaintiff and the 1st Defendant
This cannot be determined at interlocutory stage without evidence
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.
Whether the Court has jurisdiction over the dispute
The Court has jurisdiction under section 13 of the Environment and Land Court Act since the dispute revolves around title to land
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.
Whether the suit is an abuse of court process
The suit is not an abuse of court process
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.
Legal principles established
#- 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
#- 1.The 1st Defendant's Notice of Preliminary Objection dated 1st November, 2018 is disallowed
- 2.The 2nd Defendant's Notice of Preliminary Objection dated 31st October, 2018 is disallowed
- 3.Costs will be in the cause
- 4.Parties to comply with Order 11 and set the suit down for hearing on its merits
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.