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ELCDismissedNot stated in judgment (Environment and Land Court, Mombasa)· [2024] KEELC 5389 (KLR)

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)

Environment and Land Court
24 July 2024
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 2nd defendant, through a notice of motion dated 30th January 2024 supported by the affidavit of its director Dharmesh Chandulal Shah and by the 1st defendant Libey Njoki Munene, sought striking out of the plaintiffs' suit as time barred and an abuse occasioned by laches. It argued that the suit land was registered in 1975 in the name of the late James Flavian Chege Munene, who died in 2007; that the claim rests on a 1991 agreement between the late James and the late Ramniklal Manshanker Naker; and that no claim was brought within the twelve-year period under section 7 of the Limitation of Actions Act or the six-year contractual period. The plaintiffs, through the replying affidavit of Neeta Naker, countered that the cause of action arose on discovery in October 2015 of the fraudulent removal of a 1998 caveat protecting Ramniklal's 50% interest, invoking section 26 of the Act, and that the property was held in trust. The court framed two issues: when the cause of action arose and whether the suit is time barred, and costs. It held that the plaint is the primary document, that fraud pleaded and discovered around 2016 starts the limitation clock, that only about seven years had elapsed, and that the disputed facts could not be resolved at the interlocutory stage. The court dismissed the 2nd defendant's application and ordered costs to abide the outcome of the suit, with judgment dated and delivered virtually on 24th July 2024 by S. M. Kibunja, J, in Mombasa.

Key legal issues

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01

Whether the plaintiffs' suit is time barred under the Limitation of Actions Act

Holding

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.

Reasoning

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.

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02

Costs of the application

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The 2nd defendant's application is without merit and is hereby dismissed
  2. 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

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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, "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.