Tonkei & 2 others (Suing on their own behalf & on behalf of Inkoirero Self Help Group) v Kilusu & 2 others (Environment & Land Case E015 of 2023) [2024] KEELC 7128 (KLR)

The bottom line

The court refused to strike out a land fraud claim, confirming that Kenya's 12-year limit only starts when the fraud is actually discovered.

What this practically means

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Executive summary

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The 1st Defendant (Applicant) filed a Notice of Motion dated 05.04.2024 seeking to strike out the Plaintiffs' suit dated 28.11.2023 as time barred, bad in law, frivolous and an abuse of process, and alternatively as a boundary dispute that should first go to the Land Registrar under Sections 18 and 19 of the Land Registration Act. The dispute concerns LR No. Transmara/Kimintet 'D'/480, over which the Plaintiffs hold a title and the Applicant holds a parallel title dated 12.11.2008 measuring 6.52 hectares. The Applicant argued the Plaintiffs knew of his title between 2006 and 2008, so the 12-year period under Section 7 of the Limitation of Actions Act lapsed, and that claims against the 2nd and 3rd Defendants were barred by Section 3(1) of the Public Authorities Limitation Act. The Plaintiffs responded that their claim is founded on fraud, discovered only in 2011 when Mohamed Noor Hussein entered the land under a lease based on the Applicant's title. The Court framed five issues and held that the burden of proving limitation lies on the Applicant; that neither Kisii HCCC No. 144 of 2008 (to which the Applicant was not a party) nor the pleadings in Kisii HCCC No. 274 of 2012 (Kilgoris ELC No. E032 of 2021) contained any admission of knowledge of the second title before 2011; and that in fraud cases time runs from discovery. The claim against the 2nd and 3rd Defendants was found to be directed only at verification and cancellation of the Applicant's title, which the Registrar disowned. The cause of action was held not to be a boundary dispute, since Section 18 applies only to holders of legitimate titles. The application was dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the Plaintiffs' suit is time barred against the 1st Defendant

Holding

The suit is not time barred because the Applicant failed to prove when the Respondents discovered the fraud of the second title; the limitation period in fraud cases runs from discovery

Reasoning

The Applicant relied on prior proceedings (Kisii HCCC No. 144 of 2008 and Kilgoris ELC No. E032 of 2021) to show the Respondents knew of the second title between 2006 and 2008. The Court found Kisii HCCC No. 144 of 2008 did not involve the Applicant or plead a second title, and the 2012/2013 pleadings show the Respondents only discovered the parallel title in 2011 through the lease to Mohamed Noor Hussein. The Applicant therefore failed to discharge the burden under Sections 107 and 109 of the Evidence Act.

p. 8

02

Whether the claim against the 2nd and 3rd Defendants is time barred under Section 3(1) of the Public Authorities Limitation Act

Holding

The cause of action lies squarely against the Applicant's title of 12.11.2008; the 2nd and 3rd Defendants support the Plaintiffs' case, so the tort-limitation argument does not defeat the suit

Reasoning

The only relief directed at the 2nd and 3rd Defendants is an order that the Land Registrar call forth and cancel the parallel title. The 2nd and 3rd Defendants' Defence states the Applicant's title did not originate from their offices and supports the Plaintiffs. The Court found the cause of action is verification of the Applicant's title, and it is upon the Applicant to disprove the allegation that the title is forged.

p. 9

03

Whether the cause of action is a boundary dispute under Sections 18 and 19 of the Land Registration Act

Holding

It is not a boundary dispute; it is a challenge to the validity and existence of the Applicant's title, which must be resolved before any boundary question arises

Reasoning

The suit seeks cancellation of the parallel title dated 12.11.2008. The 2nd Defendant disowns that title as not originating from its offices. Since Section 18 applies only to parties with legitimate and recognised titles, the Applicant's disputed title cannot ground a boundary reference to the Land Registrar. The validity of the title must first be adjudicated by the Court.

p. 10

Legal principles established

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In fraud-based claims for recovery of land, the 12-year limitation period under Section 7 of the Limitation of Actions Act runs from the date the fraud was discovered or could with reasonable diligence have been discovered.
The burden of proving that a suit is time barred lies on the party asserting limitation, under Sections 107 and 109 of the Evidence Act.
Section 18 of the Land Registration Act applies only to parties holding legitimate and lawfully recognised certificates of title.

Court orders

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1.The notice of motion dated 05.04.2024 be and is hereby dismissed.
2.The applicant shall bear the costs of this application.

Authorities

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Legislation

Limitation of Actions ActSection 7
Limitation of Actions ActSection 26
Public Authorities Limitation ActSection 3(1)
Land Registration Act, No. 3 of 2012Sections 18 and 19
Evidence Act, Cap 80Sections 107 and 109

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tonkei & 2 others (Suing on their own behalf & on behalf of Inkoirero Self Help Group) v Kilusu & 2 others (Environment & Land Case E015 of 2023) [2024] KEELC 7128 (KLR)", Case Analysis (2024). Not stated in the judgment (Kilgoris ELC suit arising from Plaint dated 28.11.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7128/eng@2024-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.