Cabinet Secretary nominee for ICT Ministry William Kabogo in Parliament for vetting on January 14, 2025.
A land ownership dispute pitting Cabinet Secretary William Kabogo against his uncle Kimani Kabogo has been forwarded back to the High Court for hearing and determination.
This is after the Court of Appeal in Nairobi set aside a decision of High Court Judge Lucy Gacheru to strike out the suit for being statute-barred under the Limitation of Actions Act.
At the centre of the dispute, which has been running since 2017, are allegations of fraud and breach of trust on the part of Mr Kabogo, which Mr Kimani said he discovered in 2006. He sued in 2017 seeking Sh387 million in the form of damages from Mr Kabogo.
In the judgment delivered by Justices Abidah Ali-Aroni, Aggrey Muchelule, and George Odunga on Tuesday, the Appellate court directed the dispute be heard and determined before another Judge other than Justice Gacheru.
“Having considered the two preliminary objections (raised by Mr Kabogo at the High Court) which formed the basis for the Judge’s decision, we find that the preliminary objections were not properly taken and ought not to have been sustained. Before arriving at the findings, there was a primary factual issue of the existence of trust that had to be determined,” said the bench.
Ruling on an appeal filed by Mr Kimani against the High Court’s decision, the bench said the trial court erred when it struck out the suit on the ground that Mr Kimani’s claim was barred by the prescribed limitation period of three years.
The court dispute involves three land parcels, which Mr Kimani claims Mr Kabogo fraudulently acquired.
According to Mr Kimani, he was the owner of the parcels registered as LR.No.12825/27, LR.No.12825/33, and 12825/34 in March 1998 when he used the titles to borrow Sh15 million from NIC bank and ICDC.
Sometime in September 2000 after being unable to service the loans due to exorbitant interest rates, he sought the help of his nephew Mr Kabogo, who paid off the loan due to NIC Bank to avert the sale of Plots LR.No.12825/27 and 12825/34 by public auction.
Court papers indicate that the understanding was for Mr Kabogo to hold the suit properties in trust for himself and Mr Kimani until such time when the properties would be sold at market value or developed and the proceeds be shared equally between the two.
He had also sought the assistance of Mr Kabogo in the year 2003 to salvage Plot LR.No.12825/33, which was on the verge of being auctioned by ICDC, for recovery of a Sh5 million loan.
He said that it was agreed that Mr Kabogo was to recover the principal sum paid to offset the loan together with 20 per cent interest and the balance of sale was to be shared equally.
According to Mr Kimani, when in 2006 he sought to find out the status of the said properties from Mr Kabogo so that they could reduce the oral agreement between them into writing, Mr Kabogo avoided him.
He further pleaded that Mr Kabogo later evicted Mr Kimani from the suit properties and demolished his houses, coffee factory, and the workers’ camp leaving him and his siblings who were residing on the suit properties homeless and destitute.
Mr Kimani claimed that Mr Kabogo’s conduct amounted to fraud and a breach of trust and as a result, he suffered loss and damage to the tune of Sh387,875,000.
In his statement of defence at the High Court, Mr Kabogo denied the allegations made against him. In particular, he denied the existence of any agreement to have the suit properties registered in his name to hold in trust for himself and Mr Kimani as alleged.
It was Mr Kabogo’s position that two plots (LR. Nos.12825/27 and 12825/34) were registered in his favour after NIC Bank sold them by Private Treaty. He said the bank sold them to recover a loan owed by Kenya Modern Digitals Ltd which was guaranteed by Mr Kimani.
The court heard that Mr Kimani consented to the said sale and signed the transfer at the request of NIC Bank. He said the third plot (LR.No.12825/33) was sold by ICDC in exercise of its Statutory Power of Sale to Arcoverde (K) Ltd. Mr Kabogo added that he did not owe Mr Kimani any proceeds of sale.
Mr Kabogo further raised an objection to the legal dispute arguing that the suit was statute barred under section 4 of the Limitation of Actions Act.
Further, the suit offended the mandatory provisions of the Law of Contract Act, as Mr Kimani’s claim over the suit property was hinged on an alleged oral agreement.
Trial judge Lucy Gacheru, in a ruling dated December 10, 2018, struck out the suit after finding that it was statute-barred.
The judge said the limitation period for an action founded on fraud is three years which begins to run when the fraud is discovered.
She observed that Mr Kimani did not take any action within a period of three years and therefore by the end of 2009, the action was time-barred.
The judge noted that Mr Kimani did not take any action until 2016 when Mr Kabogo allegedly started to develop the suit properties.
