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ELCDismissedELC suit filed 12th March, 2020 (number not stated in judgment)· [2023] KEELC 222 (KLR)
Kuto & another (Suing as the administrator of the Estate of Kipketer Kuto (Deceased)) v Kuto & another (Environment & Land Case 23 of 2020) [2023] KEELC 222 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Nakuru (L. A. Omollo J) on the 1st Defendant's preliminary objection dated 26th July 2022 seeking dismissal of the Plaintiffs' suit as statutorily time barred under section 7 of the Limitation of Actions Act. The suit, filed in March 2020 by the legal representatives of the Estate of Kipketer Kuto, seeks declarations that the subdivision of Lembus/kabimoi/83 and subsequent registration of Lembus/kabimoi/161, /664 and /665 in the 1st Defendant's name was fraudulent and void, cancellation of the title deeds, restoration of the mother title, and a permanent injunction. The 1st Defendant, who had by Amended Defence and Counterclaim claimed the same land by adverse possession, contended the suit was brought over 45 years after he took possession. The Plaintiffs countered that time only began running on discovery of the fraud in 2019 during succession proceedings, relying on section 26(a) of the Limitation of Actions Act. The court applied the Mukisa Biscuit test, finding the objection a pure point of law, but held - following Tony Obare Ogolla, Sichuan Huashi, Oruta v Nyamato and Divecon - that where fraud is pleaded and the date of discovery is contested, limitation is a matter for trial on evidence and not for summary determination. The preliminary objection was dismissed with no order as to costs, and the parties were given liberty to lead evidence and submit on limitation after the trial.
Key legal issues
#01
Whether the suit is statute barred under section 7 of the Limitation of Actions Act
Holding
The preliminary objection fails; limitation where fraud is pleaded and disputed is a matter for the trial
Reasoning
The plaintiffs pleaded fraud and alleged discovery in October 2019. The court noted divergent positions on when time began to run. Relying on Sichuan Huashi and Divecon, the court held limitation should be decided at trial on evidence, not struck out summarily, since it affects substantial rights of the claimant.
p. 5
02
Whether the preliminary objection satisfies the Mukisa Biscuit test
Holding
It does, being a pure point of law
Reasoning
The objection was that the suit is statute barred, a pure point of law requiring no ascertainment of contested facts, hence meeting the Mukisa Biscuit threshold. The court nonetheless declined to determine the limitation issue summarily.
p. 4
Legal principles established
#- A preliminary objection must be based on a pure point of law argued on the assumption that all facts pleaded by the other side are correct
- Where limitation and fraud are in dispute, the issue of limitation should be determined at the trial on evidence, not summarily
- Costs follow the event under section 27 of the Civil Procedure Act unless the court directs otherwise
Court orders
#- 1.The preliminary objection dated 26th July, 2022 is dismissed with no order as to costs
- 2.Parties are at liberty to lead evidence on the preliminary objection and submit on it after conclusion of the trial
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (implied by court's jurisdiction over land disputes; not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuto & another (Suing as the administrator of the Estate of Kipketer Kuto (Deceased)) v Kuto & another (Environment & Land Case 23 of 2020) [2023] KEELC 222 (KLR)", Case Analysis (2023). ELC suit filed 12th March, 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/222/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.