Mutua v Shigoli & another

in fraud, misrepresentation, and illegality, with fraud accruing from the date of discovery. He became aware of the fraud when the judgment dated 17 December 2025 in ELC No. 180 of 2017, Kenya Broadcasting Corporation v Komarock Ranching & Farming Cooperative Society Limited & Anr, was rendered. It is premature to adjudicate at this point when the fraud occurred, and this issue can be addressed at trial. 2. Accordingly, following the court’s directions, the motion is argued through written submissions led respectively by the law rms representing the parties. Ms. Munguti Ngulukyo & Co. Advocates for the plainti led theirs dated 21 May 2026, and Ms. B.M Mung’ata & Co. Advocates for the defendants led theirs dated 11 May 2026. Thus, having carefully considered the motion, its grounds, adavit and annexures, plaint, rival submissions, legal framework, and relevant jurisprudence, including those relied upon by counsel, the key issue for determination is whether the motion is merited. 2. The issue of the suit being time-barred was extensively addressed in the submissions before this court. Consequently, it is essential to emphasise the relevant legal provisions and prevailing jurisprudence on timelines for ling a fraudulent claim in a contract relating to the land purchase, as this is the core of the plainti’s claim. As properly submitted by the defendants, the applicable provision on timelines for a claim founded on contract is found in our Section 4 (1) (a) of the Limitation of Actions Act, which provides: “ (1) 6. The following actions may not be brought after the end of six years from the date on which the cause of action accrued— (a) actions founded on contract; (b) ……………………………….” Nonetheless, the plainti argues that he has pleaded fraud, misrepresentation and illegality in the contractual agreements for the land purchase of Donyo Sabuk/Komarock/Block 1/9218/710, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 728, 729, and 730 (the suit properties) and seeks recourse under Section 26 of the Limitation of Actions Act which provides as follows: “ Where, in the case of an action for which a period of limitation is prescribed, either— (a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plainti has discovered the fraud or the mistake or could with reasonable diligence have discovered it: …….” 7. This court has examined the amended plaint dated 17 February 2026, and paragraphs 6 to 9 show that the parties allegedly entered into agreements for the sale of the suit properties on various dates between 12 and 21 September 2017, for a purchase price of Kshs. 13,500,000/-, which the defendants purportedly settled. It is asserted that a term of the contract was that the defendants would grant the plainti peaceful possession and occupation; however, this has not been done to date. It is further alleged that the plainti became aware in May 2025 that the suit properties were public land and were https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6202/eng@2026-10-06 2

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not available for sale by the defendants. In paragraphs 22 to 23 of his amended plaint, the plainti has explicitly pleaded and particularised claims of fraud, misrepresentation, and breach of contract. 7. Accordingly, it is clear to this court’s mind that the defendants cannot overlook that the plainti pleaded and specied fraud and properly invoked the applicability of Section 26 (a), (b), and (c) of the Limitation of Actions Act. Further, there is a dispute as to when the cause of action for breach of contract accrued, since time does not run from the date of execution but from the date of breach. In this court’s humble view, this latter issue can be addressed during trial and nal submissions. 7. In dealing with fraudulent claims over contracts, the Court of Appeal, in the recent decision of Kakad v Anne (Suing as legal representative to the Estate of Lucas Oluoch Mumia) [2025] KECA 1757 (KLR), held as follows: 7. “ 29. Therefore, that the cause of action could not arise at the time of entering the contract, and the appellant’s documents showed that he was defrauded and lied to by the respondent as late as 23rd December 2008 when he received false cheques, which is when time started running, and the appellant was thus within statutory time to le and prosecute the suit. Mr. Macharia on the other hand submitted that the appellant stated that the agreement between him and the respondent was entered into sometimes in the year 2004, yet he led the suit at the High Court eight years later by way of the plaint dated 7th December 2012. 30. We agree with the appellant that the suit was not time barred for two reasons. It is notable that the appellant pleaded fraudulent misrepresentation in his claim, and section 26 of the Limitation of Actions in this regard provides for the extension of time in cases of fraud or mistake as follows:” Thus, guided by statutory provisions and case law, this court nds that the notice of motion dated 3 February 2026 is not merited. Costs shall be in the cause. The parties are directed to comply with Order 11 of the Civil Procedure Rules. A mention date shall be set for pretrial directions. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 6TH DAY OF OCTOBER, 2026. HON. A. Y. KOROSS JUDGE 06.10.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant. Mr. Muema for Mr. Kivoi for defendant. Miss Karanja holding brief for Mr. Munguti for plainti/respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6202/eng@2026-10-06 3

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