https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4042

Gogo (Suing as the administrator of the Estate of the Late Charles Gogo Awiti aka Gogo Awiti) v Amanga (Suing as the administrator of the Estate of the Late John Omolo Amanga) & 3 others (Land Case E005 of 2025) [2026] KEELC 4042 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELC 4042 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Land Case E005 of 2025 E Asati, J June 25, 2026 Between Fredrick Awili Gogo (Suing as the administrator of the Estate of The Late Charles Gogo Awiti Aka Gogo Awiti) Plaintiff and Samwel Okelo Amanga (Suing as the administrator of the Estate of the Late John Omolo Amanga) 1st Defendant Samwel Okelo Amanda 2nd Defendant Charles Odeyo Jaoko 3rd Defendant The Kisumu County Land Registrar 4th Defendant Ruling 1.Fredrick Awili Gogo filed this suit vide the Plaint dated 23rd January, 2025, on behalf of the deceased, Charles Gogo Awiti, aka Gogo Awiti. 2.His case was that the deceased and one Achola Abayo (also deceased) were registered as joint registered owners of a parcel of land known as KISUMU/DAGO/674. That Achola Abayo died on 2nd August, 1987, leaving the deceased Plaintiff as the surviving sole owner of the entire land. 3.That, however, the 1st Defendant later unlawfully caused the land to be registered in his name, which he later transferred to the 2nd Defendant, then to the 3rd Defendant, who subdivided the land into eighteen (18) parcels, to wit, KISUMU/DAGO/3505 to 3526. On behalf of the estate of the deceased, the Plaintiff sought a declaration that the transfer of land parcel No. KISUMU/DAGO/674 was unlawful, an order of cancellation, an order of permanent injunction, and costs. 4.A preliminary objection vide the Notice of Preliminary Objection dated 17th October, 2025, was filed on behalf of the 1st, 2nd, and 3rd Defendants on the grounds that the court lacks jurisdiction to hear and determine the suit by dint of Section 4 of the Limitation of Actions Act. 5.It was submitted on behalf of the 1st, 2nd, and 3rd Defendants that, according to paragraphs 8 and 11 of the plaint, the cause of action arose on 4th April, 1979. That the suit is therefore time-barred. 6.That there is no pleading as to when the fraud was discovered. That the court already made a ruling dated 13th March, 2025. 7.On behalf of the Plaintiff, it was submitted that the Preliminary Objection does not meet the threshold in Mukisa Biscuit case. That the issues raised cannot be determined without going into the evidence and a full trial. 8.That the Plaintiff’s claim is based on fraudulent transfer of property, and that under Section 26 of the Limitation of Actions Act, time begins to run after the fraud is discovered. That the fraud was discovered when the Plaintiff began the succession process in the year 2023. 9.That the court has jurisdiction under Article 162 of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act. 10.I have considered the Preliminary Objection and the submissions made by Counsel. The threshold for Preliminary Objections was set in the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E. A 696, where it was held that:“…a Preliminary Objection consists of a point of law which has been pleaded, or which by clear implication out of pleadings, and which, if argued as a Preliminary point, may dispose of the suit.Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.’’The court further held 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.’’ 11.Thus, a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit/case if argued as a pure point of law and must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained; or if what is sought is the exercise of the court’s discretion. 12.From the pleading filed by the Plaintiff, namely the plaint, the cause of action arose in the year 1975, when, according to the Plaintiff, the land was fraudulently transferred to the 1st Defendant. No other year was pleaded either as the year when the cause of action accrued or when the fraud was discovered. 13.The claim is based on the tort of fraud, concerning which the limitation period is set in section 4 (2) of the Limitation of Action Act as follows;“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:Provided that an action for libel or slander may not be brought after the end of twelve months from such date.” 14.Section 26 of the Limitation of Actions Act provides an extension of the limitation period in case of fraud or mistake as follows:“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:Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—i.in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; orii.in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.” 15.Although there is no pleading in the plaint that can bring the Plaintiff’s cause within the provisions of Section 26 of the Act, it was submitted by the Plaintiff that it was in the year 2023, in the process of the succession, that the fraud was discovered. Whether this is true or not is a matter that can easily be established through the evidence to be adduced in the hearing. The court is of the view that courts should, as much as possible, aim to sustain suits rather than strike them out summarily. 16.The claim that the fraud was discovered on a later date can be incorporated into the plaint by way of amendment. 17.To do substantive justice, the court declines to strike out the suit for being time-barred and instead makes the following orders:i.The application is declinedii.The plaintiff is granted leave to amend, file, and serve the plaint within 21 days hereof, failing which the suit shall stand struck out with costs to the Defendants.iii.Costs of the application are awarded to the 1st, 2nd, and 3rd Defendants. RULING DATED AND SIGNED AT KISUMU, READ THIS 25TH DAY OF JUNE, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence ofAtika - Court AssistantOwuor for the Plaintiff.Rakewa for the 1st, 2nd, and 3rd Defendants.No attendance for the 4th Defendant.ELC LC E005/2025 RULING 3