https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4706

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KISUMU** **ELC APPEAL NO. E064 OF 2025** **DALMAS OUKO MATHONYE (Suing as the administrator and Legal Representative of the Estate of AGAI ABOKA)……………………..……………………………APPELLANT** **VERSUS** **JAMES NYANCHIRI NYAOSI……………………………….………….…...1ST RESPONDENT** **DALA CRINADA LIMITED………………………………….…………….…2ND RESPONDENT** **AFRICAN BANKING CO-OPERATION LTD…………………………..…..3RD RESPONDENT** **LAND REGISTRAR, KISUMU………………………………………..….…….4TH RESPONDENT** **ATTORNEY GENERAL……………………………………………….……….5TH RESPONDENT** **JUDGMENT** 1. The Appellant Dalmas Ouko Mathonye being aggrieved with the whole of the ruling of Hon. G. N. Barasah SRM, delivered on 26.06.2025, in **Kisumu CM ELC No. E140 of 2024** between himself on the one hand and James Nyanchiri Nyaosi, Dala Crinada Limited, African Banking Corporation Limited, Land Registrar-Kisumu, and the Attorney General on the other hand, filed the Memorandum of Appeal dated 11.07.2025, and sought the following reliefs; 2. This Appeal be allowed, and the costs of this Appeal be awarded to the Appellant. 3. The 3rd Respondent’s preliminary objection dated 18.02.2025 be dismissed with costs to the Appellant. 4. The **Kisumu CM ELC No. E140 of 2024** be set down for hearing and determination before a different Hon. Magistrate other than the Hon. Magistrate who issued the impugned ruling. 5. The Appellant penned 6 grounds of Appeal as follows; 6. The Learned Trial Magistrate erred in law and fact when the court failed to hold that the Appellant’s cause of action was based on fraud. 7. The Learned Trial Magistrate erred in law and fact in holding that the time began to run from 08.09.2011. 8. The Learned Trial Magistrate erred in law and fact in failing to hold that the time for the cause of action in the Appellant’s suit began to run on April 2024 or 04.06.2015. 9. The Learned Trial Magistrate erred in law and fact in failing to hold that the preliminary objection dated 18.02.2025 did not meet the threshold for a preliminary objection. 10. The Learned Trial Magistrate erred in law and fact in failing to hold that the Appellant’s suit was filed within time. 11. The Learned Trial Magistrate erred in law and fact in finding that the Appellant’s suit was filed without authority. 12. On the strength of the above grounds of Appeal, the Appellant sought for the reliefs set out at Paragraph 1 of this judgment. 13. Upon admission of the Appeal the court issued directions for disposal of the Appeal by way of written submissions which the court summarizes as herefollows; **Appellant’s Submissions** 1. The Appellant’s framed and submitted on five (5) issues for determination. On issue No. 1, whether the Appellant’s cause of action was based on fraud, the Appellant submits that land Parcel No. **KISUMU/KOGONY/655** was transferred to the 1st and 2nd Respondents without following the due process of the law and obtaining letters of grant in the estate of the deceased **AGAI ABOKA**. The Appellant also notes that the fraudulent title issued to the 1st and 2nd Respondents was charged against a loan of **Ksh.** **500,000 (Five Hundred Thousand Kenyan Shillings)** in 1998 before being transferred to the 2nd and 4th Respondents in 2011 without a discharge. 2. On issue No. 2, whether the Appellant’s suit was time barred at the time of the filing, the Appellant submits that the suit is not time barred for the reason that statutory time started to run from the date the Appellant discovered the alleged fraud in April 2024. The Appellant relied on Section 26 of the Limitation of Actions Act and the cases of **Justus Tureti Obara v Peter Koipeitai [2014] eKLR, Mintina Ene Keton Koponi (Suing as a Legal Representative of the Estate of Keton Ole Koponi Parsena (Deceased) vs. Francis Njakwe Gathiari & 2 Others [2018] eKLR,** and in ***Ishmael Ithungo vs. Geoffrey Ithongo Thindiu [1981] eKLR*.** 3. On issue No. 3, whether the preliminary objection dated 18.02.2025 met the threshold of a preliminary objection, the Appellant submits that the preliminary objection did not meet the threshold established in the case of **Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Company Limited (1969) EA 696.** 4. On issue No. 4, whether the suit was filed without authority, the Appellant submits that he took out a ***grant ad litem***, and therefore had authority to institute the suit on behalf of the deceased. 5. On issue No. 5, who would bear the costs of this appeal, the Appellant prays that the court allows this appeal with costs awarded to the Appellant. **2nd Respondent’s Submissions** 1. The 1st Respondent did not file submissions. 2. The 2nd Respondent’s submissions framed and submitted on two (2) issues in support of the trial court’s decision. On issue No. 1, whether the preliminary objection was rightfully upheld by the trial court, the 2nd Respondent submits that merely pleading fraud does not automatically bring a claim within the exemption under **Section 26 of the Limitation of Actions Act** and the trial court was bound by the Principles set out in **Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Company Limited (1969) EA 696.** Further, the 2nd Respondent submits that the pleaded date of discovery in 2024 could not simply be accepted at face value because it is contradicted by the Appellant’s own annexure that shows it was certified in 2015 undermining the claim that the fraud was discovered in 2024. 3. The 2nd Respondent relies on the case of **Gathoni vs. Kenya Co-Operative Creameries Ltd. [1982] KLR 104, Iga Vs. Makere University [1972] EA** and **Section 16 of the Limitation of Actions Act**, on the issue of unreasonable delays in bringing suits. 4. On issue No. 2, who should bear the cost of appeal, the 2nd Respondent submits that costs follow the events and prays that this appeal is dismissed with costs to the 2nd Respondent as per **Section 27 Civil Procedure Act Cap 21**. **3rd Respondent’s Submissions** 1. The 3rd Respondent’s submissions submit one (1) key question, when did the cause of action accrue? The 3rd Respondent submits that a cause of action does not run from the discovery, but rather it arises when the right of the Plaintiff is affected by the Defendant’s Acts or omission relying on the cases of **Auto Garage & Others vs. Motokov (No. 3) [1971] EA 514**, **Iga v Makerere University (1972) EA**, **Ugandan High Court decision of Elly B Mugabi vs. Nyanza Textile Industries Ltd [1992-1993] HCB 227** and **Section 7, 9, and 26 of the Limitation of Actions Act (Cap 22)**. 2. The 3rd Respondent prays that the appeal is dismissed with costs to the 3rd Respondent. **4th and 5th Respondents’ Submissions** 1. The 4th and 5th Respondents raised two (2) issues for determination in their submissions. On issue No. 1, when did time start running, the 4th and 5th Respondents submit that the time for limitation begins to run from when the claimant’s right to the land is infringed or when dispossession occurs which in this case was 2011 relying on **Section 7 of the Limitation of Actions Act Cap 22**. 2. On issue No. 2, the threshold for preliminary objection, the 4th and 5th Respondents submits that the trial court was correct in upholding the principles of a preliminary objection per the case of **Mukhisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Company Limited (1969) EA 696.** 3. The 4th and 5th Respondents’ submissions submit that the Honourable Trial Court was right in dismissing the case and pray that the decision is upheld. **Issues for Determination** 1. Having analyzed the Record of Appeal, the rival submissions and considered the law the court frames the following as issues for determination; i) whether the Appeal is merited and in determining this issue th court shall decide on two sub issues to wit a) Whether the preliminary objection as drafted before the trial court met the threshold of a preliminary Objection capable of determining the suit in limine? b) Whether the Preliminary Objection before the trial court was merited? iii) what reliefs ought to issue? iv) who bears the costs of the Appeal? **Analysis and determination** 1. This court as a first Appellate court is under a duty to “***reconsider the evidence, evaluate it and draw its own conclusion”*** as stated in **Selle and Another Vs. Associated Motor Boat Limited and 3 Others.** 2. The Notice of Preliminary Objection was raised by the 3rd Defendant and it was dated 18th of February 2025 on the grounds *interalia*; 3. That the suit was time barred under section 7 and 17 of the Limitation of Action Act. 4. the Noice of Preliminary Objection is found at page 43 of the Record of Appeal was argued by way of written submissions and in the Ruling dated 26.06.2025, the learned trial Magistrate upheld the Preliminary Objection holding *interalia;* ***“After looking at the circumstances of the case herein I will therefore find that the suit is time barred and was filed without authority”*** thus provoking this Appeal. 5. I have reviewed the Plaint dated 13.09.2024 as well as the Amended Plaint Amended on 6th February 2025 appearing at pages 8-10 of the Record of Appeal as well as pages 29-32 respectively. 6. At paragraph 10 thereof, it is pleaded that ***“on or about 2024, the plaintiff wanted to succeed the said Estate and he found out that the said land had been illegally transferred to the 1st Defendant and then to the 2nd Defendant without succeeding the said Estate”.*** 7. At paragraph 12 of the Plaint, the particulars of Fraud and Misrepresentation were pleaded. 8. Turning to issue No. l, whether the Preliminary Objection as pleaded met the threshold of Preliminary Objection capable of determining a suit in limine? 9. A Preliminary Objection was held in the decision of **Mukhisa Biscuits Manufacturer Limited Vs. West End Distributors Limited** as follows; - ***“so far, I am aware, a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by implications out of pleadings, and which if argued as a Preliminary Objection is in the nature of what used to a demurrer. It raises a pure point of law which is argued on the assumption that all acts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion”.*** 10. Similarly, in the decision of the case of **Omondi Vs. National Bank of Kenya and 2 Others** as quoted in the decision of **J.N and 5 Others Vs. Board of Management of St. G. School Nairobi and Another**, the court held as follows in respect of a Preliminary Objection ***“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…where a court needs to investigate facts, a matter cannot be raised as a Preliminary point. Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence…”*** 11. The Preliminary Objection herein was founded on sections of the law to wit section 7 and 17 of the Limitation of Action Act and whereas it was based on pure points of law. The court needed to ascertain certain facts by way of evidence, for instance whether the cause of action arose in 1982 at the time of the death of Agai Aboka or when the fraud was discovered or when time started running which is a factual issue that ought to be ascertained by facts and normal rules of evidence. 12. On this score the Preliminary Objection was thus not founded on pure points of law at it needed ascertainment of facts and was outside the scope of the threshold of a Preliminary Objection capable of determining the suit in limine. 13. Should the court be found wrong on this, which it is not, the court shall now determine whether the Preliminary Objection before the trial court was merited, in any event. 14. The gist of the Preliminary Objection before the trial court is that the suit was time barred by virtue of section 7 and 17 of the Limitation of Action Ac, as the suit was for recovery of lands. 15. It is the Appellant’s submissions that the cause of action was fraud and that time started when the discovery of fraud happened in this case in 2024 April as pleaded and paragraph 10 of the Plaint and he relies on section 26 (b) of the Limitation of Actions Act. While all the Respondents submit that the cause of action was recovery of suit property and that it accrued to the plaintiff in 2011 hence suit was time barred. 16. Having pleaded at paragraph 10 of the Plaint that he discovered the fraud in April 2024, the suit was not time barred by virtue of section 26(b) of the Limitation of Actions Act as was held in the decision in **Kenya Ports Authority Vs. Timberland (L) Ltd Civil Appeal 24 of 2017** and equally as held in **Justus Tureti Obara Vs. Peter Koipeitai Nengisoi (2014) eKLR;** and the learned trial magistrate having found merit in the Preliminary Objection thus fell in error. 17. Thus, in answer to issue No. 1, the court finds that in so far as Preliminary Objection needed to ascertain the date when the cause of action commenced it was not based on a pure point of law and that the Preliminary Objection was nonetheless not merited, hence there is merit in the Appellant’s Appeal herein. 18. On what reliefs ought to issue, the court therefore allows the Appeal, and dismisses the Preliminary Objection dated 18.02.2025 and reinstates Kisumu CM ELC No. 140 of 2024. Between Dalmas Ouko Mathonye Vs. James Nyanchiri Nyaosi and 4 Others for hearing and determination on a priority basis before any learned magistrate other than Hon. G.N. Barasah (SRM). 19. Costs of this Appeal and the Preliminary Objection shall be borne by the 3rd Respondent, who is the 3rd Defendant before the trial court. 20. Judgment accordingly. Dated at Kilgoris this 23rd day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA –Sylvia/Gilbert Mr. Okoth for Appellant Ms. Miheso for the 3rd Respondent Ms. Raburu for M.M Otieno or the 2nd Respondent