Priscillah Kiptoo Karei Dagome & another (Suing as Legal Representatives of Karei Ole Dagome) v Sports Champion Limited [2021] KEELC 3904 (KLR)
The bottom line
#A Kenyan land dispute survived a bid to have it thrown out as time-barred, because fraud allegations must be tested at a full hearing, not on paper.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs' suit to recover the suit land is statute barred under section 7 of the Limitation of Actions Act
The application to strike out the suit as time-barred was premature; section 26 provides a reprieve where fraud is pleaded, and discovery of fraud is triable
The court noted the Plaint pleaded fraud in the transfer of the land to the Defendant. Section 26 of the Limitation of Actions Act postpones the commencement of limitation until discovery of fraud, and the authority of Okongo J in Justus Tureti Obara holds that discovery of fraud is a matter for trial. The Plaintiffs' claim that they discovered the registration in 2007 and promptly moved the Tribunal was not denied. Allegations of fraud cannot be resolved on affidavit evidence.
Whether the Defendant discharged its burden on the application
The Defendant failed to furnish any document proving how it acquired the land or to controvert the Plaintiffs' averments of occupation
The court observed that the Defendant produced no single document evidencing its acquisition of the suit land, did not controvert the Plaintiffs' averment that they reside on the land, and did not explain why, if registered since 1991, it never took possession or staked a claim. The authority of Margaret Wairimu Magugu was distinguished because possession during the deceased's lifetime was not proved there as it is here.
Whether the Plaintiffs provided a plausible explanation for the delay in filing suit
Yes; the delay is explained by the alleged fraud and its discovery in 2007
The Plaintiffs deponed that they resided continuously on the land, that the deceased mostly lived in Nanyuki, and that they only discovered the Defendant's registration in 2007 during succession proceedings, after which they pursued the Land Disputes Tribunal and placed a restriction through the Deputy County Commissioner. The court accepted these as plausible reasons for the delay and associated itself with the Plaintiffs' cited decisions.
Legal principles established
#- An action to recover land may not be brought after the end of twelve years from when the right of action accrued (section 7, Limitation of Actions Act)
- Where an action is based on fraud, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud (section 26, Limitation of Actions Act)
- Allegations of fraud must be strictly proved to a standard above a mere balance of probabilities
- Whether and when fraud was discovered is a matter to be ascertained at trial, so a limitation-based striking-out application is premature
Court orders
#- 1.The Defendant's Notice of Motion application dated 14th October 2020 is disallowed
- 2.Costs will be in the cause
- 3.The matter to proceed to full hearing instead of being dismissed at this interlocutory stage
- Jurisdiction invoked
- Original civil jurisdiction over land claims; application under the Limitation of Actions Act (Cap 22) seeking dismissal of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Priscillah Kiptoo Karei Dagome & another (Suing as Legal Representatives of Karei Ole Dagome) v Sports Champion Limited [2021] KEELC 3904 (KLR)", Case Analysis (2021). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3904/eng@2021-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.