Businessman billionaire Humphrey Kariuki and a pension scheme for Telkom Kenya workers are embroiled in a court tussle over ownership of a prime land parcel in Nairobi.
At the centre of the dispute is a claim by the scheme, Telposta Pension Scheme Trustees Registered, that the land was reserved for public use and was illegally and fraudulently registered in the name of Mr Kariuki's company, Crucial Properties Limited, in 1998.
The scheme argues in the court papers that the transfer and registration of the suit property in the name of the private entity was fraudulent, illegal, wrongful, null and void.
On the other hand, the company claims to be the legitimate owner of the property based on the adverse possession rule since it has occupied the land for 24 years without interruption.
The company is owned by Rine Hart Limited (shareholder), Humphrey Kariuki Ndegwa (shareholder/director) and the director, Nyawira Kariuki.
The company has since lost its bid for dismissal of the suit, which was filed last year by the scheme seeking to recover it on behalf of the pensioners.
Crucial Properties Limited wanted the court to throw out the suit on grounds that the claim is time-barred as it was filed in 2022, more than two decades after the company was registered as the owner of the disputed land.
Relying on Section 7 of the Limitation of Actions Act, the company said a claim for land recovery cannot be instituted after the end of 12 years from the date the other party occupied the land.
The company stated that having acquired the suit property in 1998, it was upon the scheme to file or start any suit seeking recovery of the land within 12 years from the date of such registration.
The court heard that no proceedings were ever filed or initiated to challenge the registration and ownership rights of the company to the suit property.
“The plaintiff's suit is hopelessly time-barred in accordance with the Limitation of Actions Act since it has been filed over 12 years from the period within which the Plaintiff's accrued right of action over the suit property would be applicable,” said the company in a preliminary objection dated October 4, 2022.
But Justice Oguttu Mboya ruled that the objection was devoid of merits and that the plea of statutory limitation was not well grounded.
“I have also found and established that the plaint beforehand discloses a plethora of triable issues, which can only be interrogated and investigated vide a plenary hearing,” said the judge.
He stated that among the triable issues is the date of accrual of the occupation.
He noted that the pension scheme, in its court papers, contends that the information pertaining to the registration of the suit property in the name of the company came to the knowledge of the Scheme in the year 2013.
“It is appropriate to recall and observe that the provisions of Section 26 of the Limitation of Actions Act, prescribe that where fraud or mistake is concealed, the time for filing or commencing suit shall be reckoned and computed from when the fraud or mistake is discovered and not earlier,” said Justice Mboya.
