Case ID:167339

Alfred Barasa Okedo v Francis Juma Buluma & another [2020] eKLR

Case Metadata

Case Number:

Civil Case 141 of 2014

Parties:

Alfred Barasa Okedo v Francis Juma Buluma & Lous Angura Otwani

Date Delivered:

03 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Busia

Case Action:

Ruling

Judge(s):

Anne Abongo Omollo

Citation:

Alfred Barasa Okedo v Francis Juma Buluma & another [2020] eKLR

Court Division:

Environment and Land

County:

Busia

Case Outcome:

Preliminary objection dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUSIA

CIVIL CASE NO. 141 OF 2014

ALFRED BARASA OKEDO................................................. PLAINTIFF

= VERSUS =

FRANCIS JUMA BULUMA ......................................1

ST

DEFENDANT

LOUS ANGURA OTWANI........................................2

ND

DEFENDANT

R U L I N G

1. The 2

nd

defendant raised a Preliminary Objection under section 4(1)(a) of the Limitation of Action Act Cap 22 that the suit is time barred. Mr. Ipapu learned counsel for the 2

nd

defendant submitted that the suit is founded on the sale of a land agreement as pleaded in paragraph 4 of the amended plaint. That since it is a claim on contract which was executed on 3

rd

August 1984 and choses of action on contract are limited to six years the time for bringing the claim thus expired in 1990.

2. The plaintiff’s counsel opposed the preliminary objection stating that the 2

nd

defendant was registered on September 2018 during the pendency of this suit. That it is this entry which necessitated the inclusion of the 2

nd

defendant to these proceedings. That the 2

nd

defendant has no interest in the agreement of 1984 hence cannot sustain a preliminary objection premised on that agreement. The plaintiff added that at paragraph 9 of the plaint, the date of discovery of the illegality is disclosed as 20/3/2014 which date according to him is when the cause of action arose. That paragraph 4 of the amended plaint cannot be read in isolation. He urged the court to dismiss the preliminary objection.

3. It is settled in law in the case of

Mukisa Biscuits Co. Limited Vs West End Distributors Ltd (1969) EA 696

that a preliminary objection qualifies as one if it does not require proof to ascertain it by way of calling additional evidence. This suit original commenced against the 1

st

defendant only. The 2

nd

defendant was introduced by way of amendment pursuant to the order of this court given on 24

th

June 2019 granting leave to effect the amendment.

4. The claim against the 2

nd

defendant is set out in paragraph 9B, 10 and 12 of the amended plaint. Paragraph 10 listed the particulars of mistake, fraud and illegalities of the 1

st

and 2

nd

defendants

inter alia:

10(a) purchasing 0.052ha and acquiring 1.1ha.

10(j) selling of 1.1ha of land parcel L.R S.Teso/Angoromo/1601 unprocedurally and while this suit is pending.

The plaintiff therefore prayed for cancellation of the 2

nd

defendant’s title and an order of permanent injunction to issue against both.

5. The plaintiff in opposing the preliminary objection submitted that the 2

nd

defendant became registered as owner of the suit land on September 2018 which then necessitated the amendment of the pleadings to bring him on board. The claim against the 2

nd

defendant was thus generated by his acquisition of the suit property in September 2018 and not earlier. I am persuaded by the plaintiff’s submission that since the 2

nd

defendant was not party to the agreement of 1984, he cannot rely on it to raise the issue of limitation of actions.

6. Further the plaintiff submitted that he discovered the fraud about 2013/2014 and filed the suit in 2014. The issue raised by the 2

nd

defendant on whether the plaintiff ought to have discovered the fraud earlier or not i.e. whether the plaintiff was indolent is a question of fact which can only be proved by calling evidence. Once the question of fact requiring proof comes in to play, the preliminary objection ceases to be a pure point of law thus falls before the threshold set in the Mukisa Biscuits’ case.

7. Consequently, I am not satisfied that the preliminary objection raised herein is merited on the two accounts discussed herein above. The same is hereby dismissed with costs to the plaintiff.

Dated, signed & delivered at BUSIA this 3

rd

day of Dec., 2020.

A. OMOLLO

JUDGE