Benjamin Kimaiyo Itok v National Land Commission & 3 others [2020] KEELC 3463 (KLR)
The bottom line
#A buyer who waited 18 years to sue for a refund of land payments lost the case because Kenyan law gives only six years to file contract claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is time barred under Section 4(1) of the Limitation of Actions Act
Yes - the claim for refund of money under an oral agreement made in April/May 2000 had to be filed within six years; time expired around May 2006 and the suit was filed on 10th July 2018
The claim was a liquidated sum of Kshs.1,077,280 paid between 2000 and 2017 under an oral agreement made in 2000. Section 4(1) requires contract claims, including oral agreements, to be brought within six years. No extension of time was sought or obtained under Sections 26 and 27. Fraud was not pleaded in the plaint, so Section 26(c) could not save the suit.
Whether the suit contravenes Section 3(3) of the Law of Contract Act
No - the claim is for refund of money paid under the agreement, not for transfer of or ownership of an interest in land, so the objection on this ground fails
The Plaintiff's case was not for the three plots promised under the 2000 oral agreement but for refund of monies paid. Since the relief sought is monetary, the statutory requirement that contracts over land be in writing did not defeat the suit, and the preliminary objection could not stand on that ground.
Whether a fraud-based extension of time under Section 26(c) applied
No - fraud was raised only in submissions; the plaint contained no averment that the Plaintiff discovered the fraud in 2016
Only paragraph 11 of the plaint referred to fraud but fell short of pleading a fraud-based claim. Since pleading, not submissions, frames the claim, the Plaintiff could not rely on Section 26(c) to restart limitation from 9th February 2016.
Legal principles established
#- A claim for refund of money paid under an oral agreement relating to land is a claim for money, not a claim for an interest in land, and so does not offend Section 3(3) of the Law of Contract Act
- A plea of fraud to escape limitation must be pleaded in the plaint; fraud raised only in submissions cannot restart time under Section 26(c)
Court orders
#- 1.The 3rd Defendant's preliminary objection dated 26th April 2019 is upheld on the ground that the suit is statute time barred
- 2.The Plaintiff's suit is struck out with costs to the 3rd Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (suit over land parcel Eldoret Municipality/Block 10/941); no specific constitutional or statutory provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kimaiyo Itok v National Land Commission & 3 others [2020] KEELC 3463 (KLR)", Case Analysis (2020). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3463/eng@2020-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.