Karunga Women Company Limited v Stephenson Kingara Ng’ang’a & another [2019] KEELC 2404 (KLR)

The Defendants argued a 3-year tort limitation under Section 4(2) since the fraud was allegedly discovered in 1999. The Court held that the Plaintiff's cause of action hinged on the agreement of 5th June 1995 and breach of trust, at the core of which was ownership of land. Section 7 provides a 12-year period for actions to recover land. The suit filed in 2003, arising from a 1995 cause of action, was within time. Limitation also goes to jurisdiction, and although not re-pleaded, the issue had been canvassed and left to the court.

The Court found PW1 credible: the Plaintiff, a company of mostly illiterate women desperate to save the property from a threatened public auction, sought the 1st Defendant's assistance to pay off the loan, not to sell. Had they wanted a sale they would have let the auction proceed. The resolution drafted by the 1st Defendant portrayed a different arrangement, which the Court rejected.

Instead of depositing Kshs.2,000,000/= to the Plaintiff's loan account, the funds went into fixed deposits favouring his own account, his son's account and a current account. He collected rent without remitting it to the Bank or the Plaintiff, failed to surrender the property after the transaction collapsed, and the property was auctioned for Kshs.2,800,000/= and transferred to his wife and daughter-in-law despite having been priced at Kshs.5,000,000/= in 1996.

The Court quantified mesne profits at Kshs.28,000/= per month from June 1995 to July 2001 (there being no evidence of the alleged increase to Kshs.57,000/=), granted special damages equivalent to the property's value, and general damages of Kshs.1,500,000/= for the nature of the wrong. Punitive and exemplary damages were refused.