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ELCOtherNot stated in judgment

Daniel Okasisi Olegerea & another v Barasa Ekapoloni Auku [2015] KEELC 1 (KLR)

High Court of Kenya
10 December 2015
1,155 words in judgment
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The bottom line

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Kenya's High Court ruled that land fraud claims run from discovery of the fraud, and defendants can't raise time limits they never pleaded.

What this practically means

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Executive summary

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The defendant filed a preliminary objection on 2nd June 2015 under section 7 of the Limitation of Actions Act (Cap 22), contending that the plaintiffs' suit filed in 2014 was time-barred, having been filed without leave, and sought that it be struck out with costs. The defendant argued that time began to run either in 1985 when the plaintiffs left the land or in 1987 when he became registered owner, so twelve years had lapsed. The plaintiffs countered that their claim was founded on the tort of fraud, not adverse possession, that the fraud was discovered in 2013, and that in fraud-based land claims time runs from discovery of the fraudulent registration, citing Javed Gabal Rahim v Sambu. The court agreed that the claim was based on fraud and held that the cause of action accrues on discovery of the fraud. It further held that a preliminary objection must be a pure point of law argued on the assumption that the opponent's pleaded facts are correct, citing Muiruri v Kimemia and Sirma v Kiprono; here all facts were disputed. Relying on Achola v Hongo, the court held that a defendant who has neither pleaded limitation in his defence nor intimated a preliminary objection on that issue cannot raise it by way of preliminary objection. The preliminary objection was accordingly found to have no merit and dismissed with costs to the plaintiffs. The suit itself proceeds to trial.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiffs' claim, filed in 2014, is time-barred under section 7 of the Limitation of Actions Act (Cap 22)
  2. 2.Whether the issue of limitation may properly be raised by way of preliminary objection when not pleaded in the defence

Key legal issues

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01

Nature and scope of a preliminary objection

Holding

A preliminary objection is in the nature of a demurrer and must be a pure point of law argued on the assumption that the other side's pleaded facts are correct; it fails where facts are disputed or must be ascertained

Reasoning

The court restated the demurrer principle, citing Muiruri v Kimemia and Sirma v Kiprono. Since the defendant denied the plaintiffs' entire claim and all facts were in dispute, the objection on limitation could not be sustained as a pure point of law.

p. 2
02

Accrual of a claim founded on fraud

Holding

The claim being founded on the tort of fraud, not adverse possession, time runs from discovery of the fraud (allegedly 2013), so the suit filed in 2014 was not time-barred

Reasoning

The court agreed with the plaintiffs that the claim was in fraud. It adopted the position in Javed Gabal Rahim that in claims of fraudulent registration of land, limitation of three years runs from discovery of the registration/fraud.

p. 1
03

Raising limitation by preliminary objection without pleading it

Holding

A defendant who has not pleaded limitation in the defence, and did not intimate a preliminary objection on it, may not raise the issue by preliminary objection

Reasoning

Following Achola v Hongo, where the High Court was held wrong to allow an unpleaded limitation issue via preliminary objection, the court held the present defendant, whose defence did not raise limitation, could not do so here.

p. 2

Legal principles established

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  • Where a claim is based on fraudulent registration of land, the cause of action accrues when the fraud is discovered
  • A preliminary objection must raise a pure point of law on assumed pleaded facts; it cannot be raised where facts must be ascertained or discretion exercised
  • A party who has not pleaded limitation in its defence may not rely on it to sustain a preliminary objection

Court orders

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  1. 1.The preliminary objection dated 2nd June 2015 is found to have no merit and is dismissed
  2. 2.The defendant to pay the plaintiffs' costs of the preliminary objection

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the High Court (not expressly stated in judgment)

Relief refused

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Defendant's application to strike out the suit with costs as time-barred

Preliminary objection held misplaced: claim is in fraud and limitation was not pleaded in the defence

p. 3

Costs

Preliminary objection dismissed with costs to the plaintiffs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
p. 2definition of a preliminary objection
Where the claim is based on fraudulent registration of land, the cause of action accrues when the fraud is discovered.
p. 2accrual of fraud claims in land disputes
The preliminary objection herein is therefore found to have no merit and the same is dismissed with costs.
p. 3disposition - dismissal of preliminary objection with costs

Issues in the judgment

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minor

Case number and station not stated in the judgment

minor

Citations contain typographical errors in the original, e.g. '[20021 2 KLR 677' and '[2004} 1 KLR 462'

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, "Daniel Okasisi Olegerea & another v Barasa Ekapoloni Auku [2015] KEELC 1 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/1/eng@2015-12-10

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