https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5145

Okumbe (Suing as the legal representative of the Estate of Albert Okumbe - Deceased) v Jamal & 2 others (Environment and Land Case E004 of 2026) [2026] KEELC 5145 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 5145 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case E004 of 2026 JW Wanyonyi, J July 16, 2026 Between John Kanga Okumbe (Suing as the legal representative of the Estate Of Albert Okumbe - Deceased) Plaintiff and Nurbani MS. Jamal 1st Defendant Anthony Bala 2nd Defendant County Government of Homa Bay 3rd Defendant Ruling 1.Before this Court is the Preliminary Objection dated 25th February 2026 raised by the 2nd and 3rd Defendants on the following grounds:a.That this Court lacks jurisdiction to entertain the Plaintiff's suit.b.That the suit is incompetent, fatally and incurably defective, and constitutes an abuse of the court process since it was instituted approximately twenty-seven (27) years after the alleged cause of action arose, contrary to Section 7 of the Limitation of Actions Act, Cap. 22 Laws of Kenya.c.That the substratum upon which both the application and the suit are founded is incompetent and hopelessly defective, warranting the striking out of the entire suit with costs. 2.The Preliminary Objection was canvassed by way of written submissions which this Court has carefully considered together with the pleadings on record. The Parties' Submissions 3.The 2nd and 3rd Defendants submit that by the Plaint dated 3rd February 2026, the Plaintiff seeks declarations that the documents and records relating to Land Parcel No. HOMA BAY/MUNICIPALITY/BLOCK 1434/154 held by the 1st Defendant are illegal, null and void. They argue that the Plaintiff has neither sought nor obtained leave to institute the suit out of time. 4.According to the Defendants, the pleadings disclose that:i.The Plaintiff admits that the lease in favour of the deceased expired in 1998 and was never renewed;ii.The 1st Defendant is the registered leasehold proprietor of the suit property;iii.The 1st Defendant has been in occupation of the suit property for several years; andiv.The Plaintiff only obtained a Grant of Letters of Administration in 2024, which was confirmed in 2025. 3.The Defendants relied on the decisions in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Chikove & 45 Others v Mbogoria & 2 Others (2022) KEELC 15671 (KLR), and Justus Tureti Obara v Peter Koipetai Nengisoi [2014] eKLR. They further relied on Sections 4 and 7 of the Limitation of Actions Act and submitted that any claim relating to ownership of land ought to have been instituted within twelve years from the date the cause of action accrued, while any claim founded on contract ought to have been brought within six years. 4.It was their contention that the Plaintiff's claim relates to events dating back to 1998, if not earlier, and is therefore hopelessly statute-barred. 5.The Plaintiff opposed the Preliminary Objection and submitted that this Court derives its jurisdiction from Article 162(2)(b) of the Constitution and the Environment and Land Court Act. According to the Plaintiff, the suit raises allegations of fraud, illegality, misrepresentation and unlawful interference with title and possession, issues that fall squarely within the jurisdiction of this Court. 6.The Plaintiff further argued that the objection does not meet the threshold of a proper preliminary objection as laid down in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra). Reliance was also placed on Mausad & Another v Mausa & 2 Others (Civil Appeal No. E091 of 2022), where the Court declined to uphold a preliminary objection that required interrogation of contested facts. 7.The Plaintiff further submitted that the issue of limitation cannot be determined without evidence since the pleadings disclose that he discovered the alleged fraudulent records in 2017 while following up the estate of the deceased. Issues for Determination 10.Having considered the Preliminary Objection, the pleadings and the rival submissions, the issues that arise for determination are:a.Whether the Preliminary Objection satisfies the threshold established in law.b.Whether the Plaintiff's suit is statute-barred. Analysis 11.The law regarding preliminary objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Law JA stated that:“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 observed 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 where any fact has to be ascertained or where what is sought is the exercise of judicial discretion." 12.Therefore, for a preliminary objection to succeed, it must arise from uncontested facts and must not require the Court to investigate evidence or determine disputed factual issues. 13.The Defendants contend that the suit is barred by limitation because the lease allegedly expired in 1998 and was never renewed. On the other hand, the Plaintiff pleads that he only discovered the alleged fraudulent registration in the year 2017 while undertaking succession proceedings relating to his late father's estate. Under paragraph 10 of the Plaint, the Plaintiff specifically avers that he came across records allegedly showing that the suit property had fraudulently been allocated to the estate represented by the 1st Defendant. 14.Equally, at paragraph 9 of the Plaint, the Plaintiff alleges that the 1st Defendant has unlawfully entered the suit property and commenced construction thereon. The suit is therefore founded not merely on the expiry of a lease but also on allegations of fraud, unlawful allocation, illegal registration and continuing interference with the Plaintiff's proprietary rights. 15.Whether the Plaintiff indeed discovered the alleged fraud in 2017, whether such discovery was made with reasonable diligence, whether the alleged fraud existed, when the cause of action accrued, and whether the provisions of Sections 26 and 7 of the Limitation of Actions Act are applicable are all matters that cannot be resolved merely from the pleadings. They require the production of evidence and interrogation during a full hearing. 16.It is also noteworthy that where fraud is pleaded, the commencement of the limitation period may be affected by the provisions of Section 26 of the Limitation of Actions Act, which postpones the running of time until the fraud is discovered or could, with reasonable diligence, have been discovered. Whether the Plaintiff can ultimately bring himself within the ambit of that provision is a matter that can only be determined after evidence has been tendered. 17.The Defendants have also challenged the jurisdiction of this Court. However, beyond asserting that the suit is statute-barred, no other basis has been advanced to demonstrate that this Court lacks jurisdiction over a dispute concerning title to land and allegations of fraudulent registration. From the pleadings, the dispute falls within the jurisdiction conferred upon this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The question of limitation, though capable of affecting the maintainability of a suit, does not, in the circumstances of this case, deprive this Court of jurisdiction before the factual issues surrounding the accrual of the cause of action have been determined. 18.This Court is therefore persuaded that the objection raised by the Defendants is not founded on a pure point of law. Its determination would inevitably require the Court to ascertain contested facts regarding the accrual of the cause of action, the alleged fraud, the date of discovery of the alleged fraud and the circumstances under which the suit property came to be registered in favour of the 1st Defendant. 19.Such issues cannot properly be determined at the preliminary stage. Determination 21.In the premises, I find that the Preliminary Objection dated 25th February 2026 fails to satisfy the legal threshold of a proper preliminary objection as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. 22.Accordingly, the Preliminary Objection is hereby dismissed. 23.Costs of the Preliminary Objection shall abide by the outcome of the main suit. 24.It is so ordered. RULING, DATED AND DELIVERED AT HOMA BAY VIA VIRTUAL PLATFORM THIS 16TH DAY OF JULY 2026.In the presence of;1. Ondego for the Applicant – Present.2. R. Ochieng for the Respondent – Present3. Odhiambo for the 2nd and 3rd Respondent – Present4. Court Assistant; Bosibori.JOHN WALTER WANYONYIJUDGE16. 07.2026