John Kipkorir Ruto (Suing as the legal representative of the estate of Kpruto Arap Maina) v Agnes Cherop Towett (Sued as the legal representative of the estate of John Towett Mosonik) [2021] KEELC 2393 (KLR)
The bottom line
#The Environment and Land Court in Kericho struck out a 2017 land fraud claim as time-barred because the alleged 1988 fraud could have been discovered decades earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit, founded on alleged fraud of 1988 but filed in 2017, was time-barred
The suit was time-barred; the fraud was discoverable with reasonable diligence long before 2017, and the plaintiff's claim of recent discovery was not believable.
The plaintiff pleaded that the fraud occurred on 21st January 1988 and annexed a green card showing registration on that date. The plaintiff, claiming through a deceased who died in 1978, had from 1988 to 2000 to challenge the registration but did not. Claiming discovery only in October 2017 during succession proceedings was not believable, as parties had occupied their respective parcels throughout. Relying on Section 26 of the Limitation of Actions Act and Margaret Wairimu Magugu, the court held the fraud could with reasonable diligence have been discovered, so time ran from 1988 and the 2017 suit was out of time.
Whether the preliminary objection was a proper point of law
Yes; the plea of limitation was determinable on the pleadings and documents without trial.
Applying Mukisa Biscuits, the court found the objection was properly and validly raised since it rested on a pure point of law - limitation - discernible from the plaintiff's own pleadings and the annexed green card, and, going to jurisdiction, could be determined at a preliminary stage.
Legal principles established
#- A preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit - including a plea of limitation.
- In fraud-based actions, limitation does not begin to run until the plaintiff discovers the fraud or could with reasonable diligence have discovered it; due diligence entails proactivity and absence of carelessness, and the burden of proving non-discoverability lies on the plaintiff.
- Limitation goes to jurisdiction, obliging the court to terminate a time-barred suit at a preliminary stage.
Court orders
#- 1.The Preliminary Objection dated 24th February 2021 succeeds in its entirety
- 2.The Respondent/Plaintiff's suit is struck out
- 3.Costs of the suit awarded to the Applicant/Defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution / Environment and Land Court Act (court hearing a land suit); objection founded on the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kipkorir Ruto (Suing as the legal representative of the estate of Kpruto Arap Maina) v Agnes Cherop Towett (Sued as the legal representative of the estate of John Towett Mosonik) [2021] KEELC 2393 (KLR)", Case Analysis (2021). Kericho ELC (unspecified suit number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2393/eng@2021-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.