https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4722

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELCLC NO. E118 OF 2025** **BENARD MARITE KARKURES (as legal representatives** **of the Estate of KARKORES** **OLE NKUKUU NATUMI) ...................................................................................... PLAINTIFF** **VERSUS** **JAMES ROBERT NDERI MWAURA ........................................................ 1ST DEFENDANT** **OLCHORO-ONYORE GROUP RANCH ................................................. 2ND DEFENDANT** **DISTRICT LANDS ADJUDICATION AND SETTLEMENT ................ 3RD DEFENDANT** **DISTRICT LANDS REGISTRAR, KAJIADO ......................................... 4TH DEFENDANT** **HON. ATTORNEY GENERAL .................................................................. 5TH DEFENDANT** ### **RULING** ***(In respect of the preliminary Objection dated 13th February 2026)*** **Introduction** 1. The matter before this Court for determination is a Notice of Preliminary Objection dated 13th February 2026, raised by the 1st Defendant, James Robert Nderi Mwaura. The Preliminary Objection is raised in response to the Plaint dated 26th August 2025, which was filed by the Plaintiff, Benard Marite Karkures, suing in his capacity as the legal representative of the Estate of Karkores Ole Nkukuu Natumi (deceased). 2. The Plaintiff contests the transfer and registration of the suit property, known as title number KJD/OLCHORO-ONYORE/1627, in favour of the 1st Defendant. The Plaintiff alleges that the 1st Defendant fraudulently and illegally acquired the said parcel without the knowledge, approval, or acquiescence of the deceased, subsequently praying for the revocation of the title deed, restoration of the land to the deceased's name, and a permanent injunction against the 1st Defendant. 3. The 1st Defendant filed the instant Notice of Preliminary Objection, challenging the validity of the suit and the jurisdiction of this Court to entertain it. 4. The grounds upon which the Preliminary Objection is based, and the orders sought as presented as follows: 5. The Plaintiff's Plaint in its entirety is defective as the suit property could not devolve by succession, the same having been sold to the 1st Defendant by the deceased during his lifetime vide a Sale Agreement dated 27th April, 1984, had it transferred in 1987 and the title deed issued on 10th August, 2007. 6. The entire suit contravenes the provisions of Sections 4, 7, 9, 13, and 17 of the Limitation of Actions Act hence, an abuse of this court's process and time having been brought after more than 12 years' period after the transfer to the 1st Defendant in 1987. 7. The Plaintiff's Plaint dated 26th August, 2025 is thus mischievous, vexatious, frivolous, misconceived, a gross abuse and a waste of the court's process, as the same is time barred and it should be dismissed and/or struck out from this court's records with costs. 8. The Plaintiff's suit herein as against the 1st Defendant is a nullity in law and the Honourable court lacks the requisite jurisdiction to hear and determine it. **Directions** 1. The application was canvassed by way of written submissions, submissions of which have been duly considered in the writing of this ruling. **Analysis and Determination** 1. I have carefully considered the Notice of Preliminary Objection dated 13th February 2026, the grounds upon which it is founded, the rival submissions by the parties, the pleadings on record, and the applicable law. In my respectful view, the issues that arise for determination are: 2. ***Whether the Notice of Preliminary Objection raises pure points of law capable of determination as a preliminary objection;*** 3. ***If so, whether the Plaintiff's suit is statute-barred under the Limitation of Actions Act; and*** 4. ***Whether this Court consequently lacks jurisdiction to entertain the suit.*** 5. The law regarding what constitutes a proper preliminary objection is now firmly settled. The locus classicus remains ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***, where Law JA stated: ***"A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit."*** Sir Charles Newbold P further explained that: ***"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*** 1. The Supreme Court of Kenya reaffirmed these principles in ***Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR****,* where it observed that a preliminary objection serves the purpose of saving judicial time by disposing of matters that can be determined purely on questions of law without the necessity of receiving evidence. 2. The Plaintiff's suit seeks, inter alia, cancellation of the 1st Defendant's title to the land on allegations that the registration was procured fraudulently and illegally. The Preliminary Objection is premised principally on the contention that the suit is barred by limitation because the land was allegedly sold in 1984, transferred in 1987, and title issued in 2007. 3. The Plaintiff, on the other hand, pleads that the registration was fraudulent, unlawful and undertaken without the knowledge or consent of the deceased. 4. Whether indeed there existed a valid sale agreement; whether the deceased executed the transfer instruments; whether the transfer was lawfully processed; whether fraud was committed; or when such fraud, if any, was discovered or ought reasonably to have been discovered; and whether the Plaintiff's cause of action accrued at the time alleged by the Defendant, are all matters emerging from disputed facts. These are not matters that can be conclusively determined merely by reading the pleadings. They inevitably require the production of documentary evidence and oral testimony. 5. The Court in ***Oraro v Mbaja [2005] 1 KLR 141*** cautioned against expanding the scope of preliminary objections into contested factual disputes. Ojwang J (as he then was) stated: ***"A preliminary objection correctly understood is now well identified as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence."*** 1. The objection before Court invites the Court to accept, without trial, the 1st Defendant's version of the facts regarding the sale, transfer and accrual of the cause of action. Doing so would offend the principles set out in **Mukisa Biscuit** and subsequent jurisprudence. 2. Accordingly, I find that, save for the question of limitation viewed strictly from the pleadings, the objection substantially depends upon contested facts and therefore falls outside the proper scope of a preliminary objection. 3. The 1st Defendant argues that the suit is barred by Sections 4, 7, 9, 13 and 17 of the Limitation of Actions Act because the transfer allegedly occurred in 1987 while the present suit was instituted in 2025. 4. Section 7 of the Limitation of Actions Act provides: *"An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."* 1. Ordinarily, actions for recovery of land are therefore subject to a limitation period of twelve years. However, the Plaintiff's case is not merely a claim for recovery of land. The gravamen of the suit is that the suit property was fraudulently transferred and registered in the name of the 1st Defendant without the deceased's authority or consent. 2. Section 26 of the Limitation of Actions Act provides: *"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 (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."* 1. This provision postpones the commencement of the limitation period where fraud is pleaded. The Court of Appeal in ***Divecon Ltd v Samani [1995-1998] 1 EA 48,*** recognized that limitation is a substantive question governed strictly by statute, while acknowledging that where Parliament has expressly provided exceptions such as those under Section 26, courts must give effect to those statutory exceptions. 2. Likewise, in ***Mea Ltd v Commissioner of Lands & Another [2016] eKLR***, the Court observed that where fraud is pleaded, the question of when the fraud was discovered is generally a matter requiring evidence. 3. In the present case, the Plaint expressly alleges fraudulent acquisition and unlawful registration of the suit land. Whether those allegations are true is not for determination at this preliminary stage. 4. Equally, whether the Plaintiff or the deceased knew, or ought reasonably to have known, of the impugned registration, is a factual issue requiring evidentiary interrogation. Without evidence demonstrating when the alleged fraud became known, this Court cannot conclusively determine when time began to run under Section 26 of the Limitation of Actions Act. 5. The Court would therefore be engaging in speculation were it to conclude that limitation commenced in 1987 or in 2007 solely on the basis of the 1st Defendant's assertions only. 6. The Court of Appeal in ***Bosire Ongero v Royal Media Services [2015] eKLR,*** emphasized that where determination of limitation depends upon contested factual issues, the matter ought not to be disposed of by way of a preliminary objection. 7. Accordingly, I find that the plea of limitation raised herein cannot properly be determined without evidence. 8. The 1st Defendant lastly argues that because the suit is allegedly time-barred, this Court lacks jurisdiction to entertain it. Nevertheless, jurisdiction can only be declined where the absence of jurisdiction is clear and ascertainable. 9. Where the jurisdictional challenge itself depends upon unresolved factual controversies, such as whether fraud existed and when it was discovered, the Court cannot shut its doors before hearing evidence. 10. Indeed, if after trial it is established that the Plaintiff knew of the transfer beyond the statutory period and that Section 26 is inapplicable, nothing prevents the Court from ultimately finding that the suit is statute-barred. At this interlocutory stage, however, such a conclusion would be premature. The Court must be cautious not to convert disputed questions of fact into jurisdictional questions capable of summary determination. 11. I therefore find that the issue of jurisdiction, as framed in this Preliminary Objection, cannot be conclusively determined independently of evidence that is yet to be adduced at trial. 12. Having reached that conclusion, I am satisfied that the Notice of Preliminary Objection does not meet the threshold established in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***. The issues raised are inextricably intertwined with contested facts regarding the alleged sale, transfer of the suit property, the existence and nature of the alleged fraud, and the time when such fraud was discovered or ought reasonably to have been discovered. Those matters can only be resolved upon a full hearing where evidence is adduced, tested through cross-examination, and evaluated by the Court. It would therefore be improper to terminate the suit at this preliminary stage on the basis of disputed factual assertions advanced by one party. The interests of justice require that the parties be afforded the opportunity to ventilate their respective cases at trial, where the Court will be in a position to determine, upon the evidence presented, whether the Plaintiff's claim is indeed defeated by limitation or otherwise. 13. Accordingly, the Notice of Preliminary Objection dated 13th February 2026 is hereby dismissed. The Plaintiff's suit shall proceed to hearing on its merits. The costs of the Preliminary Objection shall abide the outcome of the main suit. **It is so ordered.** **Dated, Signed and Delivered at Kajiado Virtually this 21st Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Achayo for the 1st Defendant/Objector Ms. Pirianoi h/b for Mr. Nairi for the Plaintiff Mr. Miller h/b for Ms. Chimau for the 3rd – 5th Defendants N/A by the 2nd Defendant Court Assistant: Alex **M.D. MWANGI** **JUDGE**