Daniel Okasisi Olegerea & another v Barasa Ekapoloni Auku [2015] KEELC 1 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiffs' claim, filed in 2014, is time-barred under section 7 of the Limitation of Actions Act (Cap 22)
- 2.Whether the issue of limitation may properly be raised by way of preliminary objection when not pleaded in the defence
Key legal issues
#Nature and scope of a preliminary objection
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
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.
Accrual of a claim founded on fraud
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
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.
Raising limitation by preliminary objection without pleading it
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
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 2nd June 2015 is found to have no merit and is dismissed
- 2.The defendant to pay the plaintiffs' costs of the preliminary objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (not expressly stated in judgment)
Relief refused
#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
Costs
Preliminary objection dismissed with costs to the plaintiffs
Quotable passages
#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.
Where the claim is based on fraudulent registration of land, the cause of action accrues when the fraud is discovered.
The preliminary objection herein is therefore found to have no merit and the same is dismissed with costs.
Issues in the judgment
#Case number and station not stated in the judgment
Citations contain typographical errors in the original, e.g. '[20021 2 KLR 677' and '[2004} 1 KLR 462'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.