Mundia v Ngisa & 2 others; Land Registrar, Kajiado County (Interested Party) (Enviromental and Land Originating Summons E008 of 2021) [2024] KEELC 6957 (KLR)
The bottom line
#A Kajiado court refused to strike out a land fraud claim, confirming that Kenya's 12-year limitation clock starts when fraud is discovered, not when the transaction happened.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit against the 3rd defendant is barred by limitation under Section 26(1) of the Limitation of Actions Act
The suit is not time barred; limitation runs from the 2016 discovery of the alleged fraud and expires in 2028, so the suit filed on 30/7/2021 was filed in time.
The sale agreement was dated 8/6/2009, but the plaintiff alleged she discovered the fraud in 2016. Under Sections 7 and 26 of the Limitation of Actions Act, the 12-year period runs from discovery of fraud, lapsing in 2028. The suit filed on 30/7/2021 was therefore within time, defeating the objection based on Section 26(1).
Whether the 3rd defendant is a necessary party
The 3rd defendant is a necessary party because he is alleged to be a beneficiary of land meant for the plaintiff, and Article 40(6) does not protect unlawfully acquired property.
The 3rd defendant occupies the suit land allegedly transferred to him through the advocates' fraud. If it is proved the land was meant for the plaintiff, his right to own it would not be protected under Article 40(6) of the Constitution, which excludes unlawfully acquired property from constitutional protection. He therefore has a direct interest justifying his joinder.
Whether it is fair and just to strike out the suit against the 3rd defendant
It is not fair or just to strike out the suit; striking out is draconian and would breach Article 50(1) fair hearing rights, particularly as the 3rd defendant filed no defence or replying affidavit.
The court held that striking out should be exercised sparingly and courts should prefer sustaining suits. The 3rd defendant had filed no defence or material, so pleadings were not closed and the objection was not anchored on anything tangible. Striking out a case that has not crystallised owing to defendants' non-disclosure would contravene Article 50(1).
Legal principles established
#- For limitation purposes in fraud cases, time begins to run from discovery of the fraud under Sections 7 and 26 of the Limitation of Actions Act.
- The constitutional right to own property under Article 40 does not extend to property unlawfully acquired.
- Striking out a suit is a draconian remedy to be exercised sparingly; courts should sustain rather than dismiss suits.
Court orders
#- 1.The preliminary objection dated 23/11/2023 is dismissed.
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to title to land (LR Kajiado/Kisaju/3132 and 80361); no specific constitutional/statutory provision invoked for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mundia v Ngisa & 2 others; Land Registrar, Kajiado County (Interested Party) (Enviromental and Land Originating Summons E008 of 2021) [2024] KEELC 6957 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6957/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.