Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2019] KEELC 4037 (KLR)

Susan Wanjiku Kimani v Creek Ventures Limited; Registrar of Lands Ngong & 2 others (Interested Parties) [2019] KEELC 4037 (KLR)

Environment and Land Court
26 March 2019
COChristine Ochieng
767 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner's fraud-based claim over a Kajiado parcel survived a time-bar challenge because fraud must be proved at trial, not through a preliminary objection.

What this practically means

#

Executive summary

#
The Defendant filed a Notice of Preliminary Objection dated 27th October 2018 seeking dismissal of the Plaintiff's suit on two grounds: that the suit was time barred under section 7 of the Limitation of Actions Act (Cap 22), and that the court lacked jurisdiction under section 18 of the Land Registration Act because the matter was said to be a boundary dispute. The Plaintiff opposed the objection, pleading in the plaint that the Defendant fraudulently registered itself on a portion of land parcel Kajiado/Olchoro-Onyore/2182, fenced part of it, trespassed, and subdivided it into the new parcel known as Kajiado/Olchoro-Onyore/29494. The court framed two issues: whether the suit was time barred under section 7, and whether the court had jurisdiction. On limitation, the court noted section 7 bars land recovery actions after twelve years but section 26 postpones the limitation period where the action is based on the defendant's fraud until the plaintiff discovers the fraud. Relying on R. G. Patel v. Lalji Makanji [1957] EA 314, the court applied the principle that allegations of fraud must be strictly proved to a standard above a mere balance of probabilities, holding that such proof can only occur when the suit is heard on its merits. The suit was therefore not statute barred. On jurisdiction, the court found no averments in the plaint alleging a boundary dispute; the plaintiff claimed ownership of the suit land and pleaded trespass, so the court held it had jurisdiction. The preliminary objection was dismissed with costs in the cause. Judgment was delivered at Kajiado on 26th March 2019 by Christine Ochieng, Judge.

Key legal issues

#
01

Whether the suit to recover land was time barred under section 7 of the Limitation of Actions Act

Holding

The suit is not statute barred because the plaintiff pleaded fraud, and section 26 postpones the limitation period until discovery of the fraud; fraud must be proved at trial.

Reasoning

Section 7 bars actions to recover land after twelve years, but section 26 provides that where an action is based on the defendant's fraud, time does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud. The plaintiff pleaded fraudulent registration and trespass. Since allegations of fraud must be strictly proved, the issue can only be resolved after the suit is set down for hearing, so the preliminary objection fails.

p. 2
02

Whether the court has jurisdiction where the defendant contended the matter is a boundary dispute caught by section 18 of the Land Registration Act

Holding

The court has jurisdiction because the plaint alleges fraudulent registration and trespass over the suit land, not a boundary dispute.

Reasoning

The defendant argued the matter was a boundary dispute within section 18 of the Land Registration Act, ousting the court's jurisdiction. However, on a keen perusal of the plaint, no averments alleging a boundary dispute were found; the plaintiff claimed the suit land and pleaded trespass. The objection therefore did not disclose a jurisdictional bar.

p. 2

Legal principles established

#
  • Allegations of fraud must be strictly proved, to a standard above a mere balance of probabilities, and can only be determined at full hearing rather than on a preliminary objection.

Court orders

#
  1. 1.The Defendant's Notice of Preliminary Objection dated 27th October 2018 is dismissed
  2. 2.Costs will be in the cause

Authorities

#

Legislation

  • Limitation of Actions Act (Cap 22 Laws of Kenya)section 7
  • Limitation of Actions Act (Cap 22 Laws of Kenya)section 26
  • Land Registration (Act No. 3 of 2012)section 18

Cases cited (1)

  • R. G. Patel v. Lalji Makanji
    [1957] EA 314
Jurisdiction invoked
Original civil jurisdiction over land disputes; suit under the plaint alleging fraudulent registration and trespass on land parcel Kajiado/Olchoro-Onyore/2182

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Susan Wanjiku Kimani v Creek Ventures Limited; Registrar of Lands Ngong & 2 others (Interested Parties) [2019] KEELC 4037 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4037/eng@2019-03-26

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