Naker & another (Suing in their Capacity as the Legal Representatives of the Estates of Kantaben Ramniklal Naker & Ramniklal Manishanker Naker) v Munene (Sued as Legal Representative of the Estate of James Flavian Chege Munene) & 3 others (Environment & Land Case E030 of 2023) [2024] KEELC 5389 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs' suit is time barred under the Limitation of Actions Act
The application to strike out the suit as time barred was dismissed. Although registration of the suit land occurred in 1975 and the 1991 agreement predates the suit by over twelve and six years respectively, the plaintiffs pleaded fraud discovered in 2015/2016 upon removal of the caveat; time therefore runs from discovery under section 26, making the 2023 suit within the twelve-year period.
The court accepted that the plaintiffs' plaint dated 11th October 2023 is the primary document for determining the cause of action. The plaint pleads fraud in the removal of the 1998 caveat, said to have been discovered in late 2015/2016. Under section 26 of the Limitation of Actions Act, time runs from discovery of fraud. About seven years had lapsed, short of the twelve years for adverse claims. As the facts are disputed, the issue is reserved for trial.
Costs of the application
Costs were not awarded to any party on the application; costs were ordered to abide the outcome of the suit, notwithstanding the general rule that costs follow the event.
Section 27 of the Civil Procedure Act provides that costs follow the events unless the court orders otherwise for good cause. The court found that the nature of the claim - a disputed trust/fraud claim to be determined at trial - justified deviating from the general rule and deferring costs until the suit's outcome.
Legal principles established
#- Where a claim of fraud is pleaded, time for purposes of limitation begins to run from discovery of the fraud, and where the facts are disputed the issue cannot be resolved on an interlocutory application but must proceed to trial.
Court orders
#- 1.The 2nd defendant's application is without merit and is hereby dismissed
- 2.The costs to abide the outcome of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (interlocutory application within a pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naker & another (Suing in their Capacity as the Legal Representatives of the Estates of Kantaben Ramniklal Naker & Ramniklal Manishanker Naker) v Munene (Sued as Legal Representative of the Estate of James Flavian Chege Munene) & 3 others (Environment & Land Case E030 of 2023) [2024] KEELC 5389 (KLR)", Case Analysis (2024). Not stated in judgment (Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5389/eng@2024-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.