Both preliminary objections are upheld on the ground

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plaintiff is indeed evading the doctrine of res judicata. Both Preliminary Objections are upheld on the ground that this suit is Res judicata. Whether the suit is statute barred 24. On this issue 4 th defendant has submitted that fraud is a tort hence the claim falls under section 4 (2) of the Limitation of Actions Act which provides that: “An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued”. 25. 4 th defendant contends that plaintiff has mischievously misrepresented the allegation of fraud and has also been economical with the truth. It has been submitted that plaintiff has put in as part of his list of documents, abstract copies of police O.B numbers which he got after he reported the alleged fraud at the police station this year. However, upon a keen look at his pleadings, specifically his supporting affidavit dated 4 th May, 2018, the averments from paragraphs 2 -8 expound on an event that took place in 1977 when he allegedly intended to subdivide “his” land and he clearly states that the named persons therein with the assistance o f a law firm defrauded him of his land. He clearly confesses of his knowledge of the alleged fraud and thus time started running from 1977 and not in 201 8 . 26. The 4 th defendant has cited the case of Peter Kimani Njenga vs Mugo Kamabuni Mugo & 3 others (2018) eKLR where Justice M.C Oundo stated thus stated “….. In the case of Bosire Ongero vs Royal media services (2015) eKLR the court held that the issue of limitation goes to the jurisdiction of the court to entertain claims and therefore if a matter is statute barred the court has no jurisdiction to entertain the same…..”. 27. The 4 th defendant contends that without a doubt or second guessing, the instant application and the entire suit are stale ab initio and the only effect is to clog the justice system thereby amputating the efficiency and the efficacy of the administration justice and hence only a dismissal with costs would save the situation. 28. Section 26 of the Limitation of Actions Act provides that; “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 plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it….” . 29. As pointed out by 4 th defendant, plaintiff appears to have a detailed account of the 1977 transaction as is captured in his affidavit of 4.5.2018 paragraph 2-8 thereof. He mentions the RAHEMTULAS as the persons who defrauded him. 42 years down the line, he wants this court to unravel the mystery of that fraud!

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