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ELCStruck OutNot stated in the ruling· [2020] KEELC 3463 (KLR)

Benjamin Kimaiyo Itok v National Land Commission & 3 others [2020] KEELC 3463 (KLR)

Environment and Land Court
19 February 2020
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 3rd Defendant filed a preliminary objection seeking striking out of the Plaintiff's suit on three grounds: that the suit was time barred under Section 4(1) of the Limitation of Actions Act, that it offended Section 3(3) of the Law of Contract Act, and that it deserved to be struck out with costs. The suit was a liquidated claim for Kshs.1,077,280 paid by the Plaintiff to the 1st and 2nd Defendants on behalf of the 3rd Defendant under an oral agreement of 2000, in expectation of three plots from Eldoret Municipality/Block 10/941. The court found that the claim was for refund of monies paid under the agreement, not for an interest in land, so the Section 3(3) objection failed. However, contract claims including oral agreements must be filed within six years; the agreement was made in April and May 2000, so limitation expired around May 2006, long before the suit was filed in July 2018. The Plaintiff argued in submissions that the suit was based on fraud under Section 26(c), with time running from a notice of 9th February 2016, but the plaint contained no averment of discovery of fraud, only paragraph 11 referring to fraud falling short of pleading a fraud-based claim. No extension of time had been sought under Sections 26 and 27. The preliminary objection was upheld on the limitation ground, the suit was struck out with costs to the 3rd Defendant, and it was ordered that costs follow the event under Section 26 of the Civil Procedure Act.

Key legal issues

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01

Whether the suit is time barred under Section 4(1) of the Limitation of Actions Act

Holding

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

Reasoning

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.

p. 2
02

Whether the suit contravenes Section 3(3) of the Law of Contract Act

Holding

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

Reasoning

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.

p. 2
03

Whether a fraud-based extension of time under Section 26(c) applied

Holding

No - fraud was raised only in submissions; the plaint contained no averment that the Plaintiff discovered the fraud in 2016

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The 3rd Defendant's preliminary objection dated 26th April 2019 is upheld on the ground that the suit is statute time barred
  2. 2.The Plaintiff's suit is struck out with costs to the 3rd Defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSection 26(c)
  • Limitation of Actions ActSections 26 and 27
  • Law of Contract ActSection 3(3)
  • Civil Procedure ActSection 26

Cases cited (7)

  • The Owners of Motor Vessel Lilians Vs Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Silver Kenya Ltd Vs Junction Ltd & 2 Others
    (2013) eKLR
  • Kangatta Properties Co. Ltd Vs Charity Njeri T/A Winacom Crossline Suppliers & 4 Others
    (2014) eKLR
  • Mukhisa Biscuit Manufacturing Company Ltd Vs West End Distributors Ltd
    (1969) E.A. 696
  • Riccardo Nelson Pasotto Vs Carlo Barbin Lissone
    [2017] eKLR
  • Macharia Mwangi Maina & 87 Others Vs Danson Mwangi Kagiri
    [2014] eKLR
  • Lloyds Bank PLC Vs Rosset
    (1991) IAC 107, 132
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

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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, "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.