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ELCDismissedNot stated in judgment· [2021] KEELC 2764 (KLR)

Geofrey Kiptarbei Rono v Johana Komen Rotich & another; Kenya Commercial Bank (Interested Party) [2021] KEELC 2764 (KLR)

Environment and Land Court
22 June 2021
1,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret dismissed a bid to throw out a land suit, confirming that fraud claims start the limitation clock only when the fraud is discovered.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determined a Notice of Preliminary Objection dated 5th October 2020 by the 1st and 2nd defendants seeking dismissal of the plaintiff's land suit as incompetent, disclosing no reasonable cause of action, and time-barred under the Limitation of Actions Act Cap 22. The defendants argued there was no contractual relationship with the plaintiff, relied on the doctrine of privity of contract, contended the underlying sale agreement was void for non-compliance with section 3(3) of the Law of Contract Act, invoked nemo dat quod non habet because the alleged original sellers were not on the green card, and maintained the suit was time-barred under section 7 of the Limitation of Actions Act having been brought 26 years after a 1994 agreement. The plaintiff opposed, relying on the Mukisa Biscuit threshold for preliminary objections, submitting the objection was founded on facts requiring proof, and that the suit was anchored on pleaded fraud, with limitation running only from discovery of the fraud. The court applied the Mukisa Biscuit and Nitin Properties formulations, holding the objection rested on facts to be ascertained at trial rather than pure points of law and could not succeed. On limitation, applying Justus Tureti Obara vs Peter Koipeitai, the court held that where a claim is anchored on fraud, time does not run until the fraud is discovered, a matter for trial. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit threshold

Holding

It did not; the applicants relied on elaborate facts and matters to be proved at trial rather than pure points of law

Reasoning

The court applied the Mukisa Biscuit and Nitin Properties tests. The defendants' objection rested on the absence of a contractual relationship, non-production of an initial sale agreement, and names not appearing on the green card - all factual matters requiring evidence at trial. A case cannot be terminated at a preliminary stage on facts rather than pure points of law.

p. 2
02

Whether the suit is time-barred under section 7 of the Limitation of Actions Act

Holding

No; the plaintiff pleaded fraud, and by the proviso to section 26 limitation does not run until discovery of the fraud, which is a matter for trial

Reasoning

Section 7 prescribes 12 years for recovery of land, but the proviso to section 26(a) postpones the running of time in fraud claims until the plaintiff discovers or could with reasonable diligence have discovered the fraud. The plaintiff particularised fraud in paragraphs 22 and 23 of the plaint, so when the fraud was discovered must be ascertained at trial, and the objection premised on limitation fails.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised
  • Where a claim for recovery of land is anchored on fraud, the limitation period does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud

Court orders

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  1. 1.The preliminary objection dated 5th October 2020 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Limitation of Actions Act Cap 22Section 7
  • Limitation of Actions Act Cap 22Section 26 (proviso)

Cases cited (8)

  • Charles Njihia Ndung'u vs Mercy Wamaitha Kaburi
    [2018] eKLR
  • Leo Investment Ltd v Estuarine Estate Ltd
    [2017] eKLR
  • Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maim
    [2019] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Francis Kiptanui Makiche v Susan Kiplagat
    [2017] eKLR
  • Janet Syokau Kaswii v Kathonzweni Financial Service Association
    [2014] eKLR
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Justus Tureti Obara vs Peter Koipeitai
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; no specific provision cited

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, "Geofrey Kiptarbei Rono v Johana Komen Rotich & another; Kenya Commercial Bank (Interested Party) [2021] KEELC 2764 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2764/eng@2021-06-22

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