https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5124

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E039 OF 2024** EUNICE ALUKHABA JONAH *(Suing as the Legal Representative of the Estate of Jonah Ochami Nangabo – Deceased)*.......................................................................................APPELLANT VERSUS 1. PANDI OPONYO 2. FRANCIS ATWOLL JUMASAYI 3. RAMADHAN RUBIA WANGA 4. HILLARY MARTIN AKHUNGU 5. SAMSON KHAYUMBI ZAKARIA 6. ROSE MSHEANDA MANYENYA 7. HANNAH KHAVUGWI MAINA 8. MARTHEA ABUTI ASWANI 9. EGESA ABUTI ROBERT 10. MAUREEN AKHWALE MOMBO 11. JAYNE MESAH OCHIENG 12. DOLLY AKILI KHOYE 13. PAULINE MUTHONI NDUGU 14. GIDEON KULUNDU 15. SHAWAL ABUTI NYAROYA 16. BILHA NEREA MUTENDE 17. JUDITH KWAMBOKA ONDERI 18. ELYNE AMUKOYA ONDEKO 19. MILDRED KHAKONI AKHONYA 20. WYCLIFFE CHITE WESECHERE 21. IGNATIUS KWEYU ATEYA 22. LIVINGSTONE JACOB OMWIKWE 23. KHALID MMBWANA SAKWA…………………..........................................................RESPONDENTS *(Being an appeal from the Ruling of Hon. G. P. Omondi, Senior Principal Magistrate, delivered on 16th July 2024 in Mumias MCELC No. 35 of 2019)* **JUDGMENT** **A. INTRODUCTION** 1. This is an appeal from the ruling of the Senior Principal Magistrate, Mumias, delivered on 16th July 2024 in Mumias MCELC No. 35 of 2019. By that ruling, the learned magistrate upheld a preliminary objection raised by the 4th to 23rd respondents and dismissed the appellant’s suit on the basis that it was statute barred under section 4(2) of the Limitation of Actions Act. 2. The appellant, who sued as the legal representative of the estate of the late Jonah Ochami Nangabo, was aggrieved by that determination and lodged this appeal. Although the memorandum of appeal contains several grounds, the appeal turns substantially on one question: whether the learned magistrate properly identified the nature of the suit before selecting and applying the relevant limitation provision. 3. That question is significant because limitation is not applied in the abstract. The period applicable to a claim is determined by the legal character of the cause of action, the material facts pleaded, and the substantive remedies sought. A court considering a plea of limitation must therefore first identify, from the pleadings read as a whole, the true nature of the claim before it. 4. The appellant contends that the learned magistrate treated the suit as one founded solely on fraud and, on that basis, applied the three-year period provided for tortious claims under section 4(2) of the Limitation of Actions Act. Her complaint is that the court did not sufficiently consider whether the claim was also, or principally, one for recovery of land and cancellation of titles; whether section 7 of the Act consequently arose for consideration; and whether section 26 of the Act was potentially relevant given the pleaded allegations of fraud and concealment. 5. The respondents support the ruling. Their position is that the appellant expressly pleaded fraud; that fraud is a tort; and that the learned magistrate correctly held that the suit, having been filed outside the three-year limitation period, was incompetent. 6. Having considered the record, the impugned ruling, the memorandum of appeal, the parties’ submissions and the applicable legal principles, I am persuaded that the appeal is merited. My reasons follow. **B. BACKGROUND AND THE PROCEEDINGS BEFORE THE SUBORDINATE COURT** 1. The appellant instituted Mumias MCELC No. 35 of 2019 by a plaint dated 4th September 2019. She brought the suit in her capacity as the legal representative of the estate of the late Jonah Ochami Nangabo, who was pleaded to have been the registered proprietor of land parcel number **EAST/WANGA/ISONGO/893**, measuring approximately 2.3 hectares. 2. The appellant’s complaint was that the 1st respondent, said to have been a younger brother of the deceased, unlawfully dealt with a portion of the deceased’s land without authority, knowledge or consent of either the deceased or the estate. It was pleaded that the 1st respondent purported to sell part of the land to the 2nd respondent and that subsequent dealings culminated in subdivision of the original parcel into parcel numbers **EAST/WANGA/ISONGO/3586** and **EAST/WANGA/ISONGO/3587**. 3. The plaint further alleged that the resultant parcels, or portions thereof, were transferred to other persons. The appellant pleaded particulars of fraud against some of the respondents. The particulars were relied upon as the factual foundation for the reliefs sought, which included cancellation of the resultant titles, restoration of the original title, eviction of alleged trespassers and consequential reliefs. 4. The 4th to 23rd respondents raised a preliminary objection. They contended that the appellant’s claim was founded on fraud and was consequently barred by section 4(2) of the Limitation of Actions Act. The objection was canvassed through written submissions. 5. In the ruling now under appeal, the learned magistrate framed the principal issue as whether the claim was founded on tort. The court answered that question in the affirmative, holding that fraud was a tort and that the suit ought to have been instituted within three years from the date on which the cause of action accrued. The learned magistrate also observed that the appellant had not sought leave to institute the claim out of time. The suit was accordingly dismissed with costs to the 2nd to 23rd defendants. 6. The present appeal followed. **C. GROUNDS OF APPEAL** 1. The grounds of appeal may conveniently be condensed into four complaints. First, the appellant faults the learned magistrate for characterizing the suit as one founded exclusively on fraud and applying section 4(2) of the Limitation of Actions Act without a fuller consideration of the pleadings. 2. Secondly, the appellant contends that the learned magistrate failed to appreciate that the principal remedies sought were cancellation of titles, restoration of land and eviction of alleged trespassers. It is argued that, in that context, section 7 of the Limitation of Actions Act, which concerns actions to recover land, required consideration. 3. Thirdly, the appellant maintains that, once fraud and concealment were pleaded, the learned magistrate ought to have considered section 26 of the Act. That provision postpones the commencement of time where the action is based on fraud or where the right of action has been concealed by fraud, until the claimant has discovered the fraud or could, with reasonable diligence, have discovered it. 4. Fourthly, the appellant challenges the learned magistrate’s reference to leave to file suit out of time. The appellant argues that no application for enlargement of time was before the court and that the issue of leave did not arise for determination. **D. DUTY OF A FIRST APPELLATE COURT** 1. This is a first appeal. The duty of this Court is to reconsider the material that was before the subordinate court, evaluate it independently and reach its own conclusion. In undertaking that duty, the Court must bear in mind that the decision appealed from arose from a preliminary objection and not after a full hearing. There is therefore no oral evidence to be re-evaluated, nor any question of the trial court’s advantage in seeing and hearing witnesses. 2. The appellate task is instead to examine the pleadings, the preliminary objection, the submissions and the ruling in order to determine whether the learned magistrate correctly applied the law to the case as pleaded. The general duty of a first appellate court was stated in ***Selle & Another v Associated Motor Boat Co Ltd* [1968] EA 123** and reiterated in ***Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co Advocates* [2013] eKLR.** 3. The Court must not, however, determine at this stage the merits of the appellant’s substantive allegations of fraud, unlawful dealings, title or ownership. The narrow inquiry is whether the suit was properly disposed of at a preliminary stage on the ground that it was statute barred. **E. CONSIDERATION OF THE PARTIES’ SUBMISSIONS AND AUTHORITIES** 1. The Court has considered the authorities cited by the parties. The appellant relied, in substance, on the principles that a preliminary objection must rest on a pure point of law; that the nature of a cause of action is ascertained from the pleadings read as a whole; and that where fraud or its discovery is in issue, the question of limitation may depend on factual matters not suitable for final determination at a preliminary stage. 2. The respondents, for their part, correctly submitted that fraud may constitute a tort and that an action founded on tort is ordinarily subject to the limitation period prescribed under section 4(2) of the Limitation of Actions Act. They were also correct that limitation, where apparent from the pleadings and incapable of legitimate dispute, may properly be raised by way of a preliminary objection. 3. Those propositions are not in conflict. The difficulty in the present case lies not in the legal validity of the respondents’ authorities, but in their application to the pleadings before the subordinate court. The appellant did not seek damages for deceit or fraudulent misrepresentation as the substantive remedy. She sought cancellation of titles allegedly obtained through impugned transactions, restoration of the original register, and consequential relief relating to the land. The pleaded fraud was therefore not necessarily the independent cause of action; it was also the factual foundation upon which the appellant sought to impeach the resultant titles and recover the land. 4. Accordingly, the authorities addressing a straightforward tortious claim founded on fraud are distinguishable to that extent. They could not relieve the trial court of the duty to consider whether the claim, viewed in its entirety, also engaged section 7 of the Limitation of Actions Act and whether the allegations concerning the discovery and concealment of the impugned transactions potentially brought section 26 of the Act into operation. 5. Equally, the authorities relied upon by the appellant do not mean that every allegation of fraud automatically defeats a plea of limitation. They only establish that where the accrual of the cause of action, the date of discovery, the nature of the interest asserted, or the applicable statutory limitation regime cannot be resolved without an inquiry into contested facts, the matter is ordinarily unsuitable for disposal through a preliminary objection. 6. It is on that narrower basis that this Court reaches its conclusion. The learned magistrate was entitled to consider the plea of limitation. However, before applying section 4(2) exclusively, the court was required to identify the true character of the suit and consider the potentially applicable provisions of the Act. That inquiry was not sufficiently undertaken. **F. ISSUES FOR DETERMINATION** 1. The issues arising for determination are: 2. Whether the preliminary objection met the threshold for a valid preliminary objection. 3. Whether the learned magistrate correctly characterised the appellant’s suit. 4. Whether sections 4(2), 7 and 26 of the Limitation of Actions Act were properly considered. 5. Whether the issue of leave to institute proceedings out of time properly arose. 6. What orders should issue. **G. WHETHER THE PRELIMINARY OBJECTION MET THE APPLICABLE THRESHOLD** 1. The law on preliminary objections is settled. In ***Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd* [1969] EA 696**, the Court explained that a preliminary objection consists of a pure point of law which has been pleaded or arises by clear implication from the pleadings and which, if successfully argued, may dispose of the suit. The Court further stated that such an objection is argued on the assumption that the facts pleaded by the opposite party are correct. It cannot properly be raised where a fact has to be ascertained or where the court is invited to exercise discretion. 2. A plea of limitation may, in an appropriate case, be determined by way of a preliminary objection. Where the dates pleaded in the plaint clearly and conclusively demonstrate that the suit was filed after expiry of the applicable limitation period, the court is entitled to determine the matter without proceeding to trial. Limitation serves important public purposes. It promotes certainty, protects parties against stale claims and ensures that disputes are brought before courts while evidence remains available and reliable. 3. That general proposition is subject to an important qualification. Before a court can determine whether a suit is statute barred, it must first identify the nature of the cause of action and the limitation provision properly applicable to it. The Limitation of Actions Act does not prescribe one uniform period for all claims. It provides different periods for, among other matters, actions founded on contract, tort, recovery of land, enforcement of judgments and claims affected by fraud or mistake. 4. The court must therefore not move directly from the presence of an allegation of fraud to the conclusion that the entire suit is necessarily one founded on tort. The pleadings must be read as a whole. The factual allegations, the legal wrongs asserted and, importantly, the remedies sought must all be examined before the court selects the governing limitation regime. 5. In the present case, the respondents’ preliminary objection depended on the proposition that the suit was founded exclusively on fraud. The appellant disputed that characterization and maintained that the principal grievance was unlawful deprivation of land belonging to the deceased’s estate and the creation of resultant titles said to be liable to cancellation. 6. The question whether the claim was properly characterized as a tort claim, an action for recovery of land, a composite claim invoking both fraud and proprietary remedies, or another category of claim was thus not a peripheral matter. It went to the very foundation of the preliminary objection. The learned magistrate was required to resolve that question through a careful examination of the entire plaint. 7. For the reasons set out below, I find that the learned magistrate did not sufficiently undertake that exercise. The preliminary objection was therefore determined on an incomplete appreciation of the nature of the suit. **H. WHETHER THE APPELLANT’S SUIT WAS CORRECTLY CHARACTERIZED** 1. The starting point is the plaint. The court must derive the nature of a claim from the facts pleaded and the remedies sought, rather than from an isolated label attached to one aspect of the pleading. A suit may plead fraud without being, in its essential character, an action for damages in tort. Fraud is often pleaded in land litigation as the factual basis upon which cancellation of title, rectification of the register, recovery of land or other proprietary remedies are sought. 2. In this case, the appellant pleaded that the deceased was the registered proprietor of parcel number EAST/WANGA/ISONGO/893. She alleged that the original parcel was unlawfully dealt with and subdivided into parcels EAST/WANGA/ISONGO/3586 and EAST/WANGA/ISONGO/3587. She pleaded that titles or interests arising from those dealings were tainted by fraud and unlawful conduct. 3. The reliefs sought are central to the inquiry. The appellant did not principally seek damages for deceit, fraudulent misrepresentation or other monetary relief ordinarily associated with a claim in tort. Her principal objective was cancellation of titles, restoration of the original parcel and recovery of possession from persons alleged to be trespassers. 4. The allegations of fraud were undoubtedly material. They were not incidental or ornamental. They formed the factual basis upon which the appellant sought to impeach the impugned dealings and resultant titles. Yet that did not automatically render the entire suit one founded solely on tort for purposes of section 4(2) of the Limitation of Actions Act. 5. A land claim seeking restoration of title or recovery of land may involve more than one legal dimension. It may raise questions of fraud, title, possession, statutory powers of rectification and recovery of land. The presence of fraud does not eliminate the need to consider the substance of the proprietary remedies sought. 6. The learned magistrate appears to have reasoned that, because fraud had been pleaded, the claim was necessarily founded on tort. With respect, that approach was too narrow. It did not sufficiently account for the appellant’s pleaded case that land forming part of the deceased’s estate had been unlawfully alienated and that the ensuing titles should be cancelled in order to restore the estate’s proprietary rights. 7. The proper characterization of the suit required a broader inquiry. The court was required to ask what, in substance, the appellant was seeking to enforce. The answer lies not merely in the pleaded particulars of fraud but also in the remedies sought. Those remedies disclosed a claim seeking to recover land and restore proprietary interests alleged to have been unlawfully interfered with. 8. I therefore find that the learned magistrate erred in treating the claim as one founded exclusively on fraud without sufficiently considering its proprietary character and the remedies sought. **I. WHETHER SECTIONS 4(2), 7 AND 26 OF THE LIMITATION OF ACTIONS ACT WERE PROPERLY CONSIDERED** 1. The learned magistrate relied on section 4(2) of the Limitation of Actions Act. That provision provides that 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. 2. There is no dispute that section 4(2) may apply where a claim is properly characterized as one founded on tort. Nor is there any question that fraud may, depending on the pleadings and reliefs sought, form the basis of a tortious claim subject to the statutory limitation period. 3. The difficulty in the present matter is that the learned magistrate did not sufficiently consider whether section 4(2) was the only provision potentially applicable. The appellant’s claim was not confined to allegations of fraud. It also sought cancellation of titles, restoration of the original parcel and eviction of persons alleged to be in wrongful occupation. 4. Section 7 of the Limitation of Actions Act provides that an action may not be brought by a person to recover land after the end of twelve years from the date on which the right of action accrued. Whether that provision ultimately applies to the appellant’s claim is not a question that this Court should conclusively determine on the present record. That issue may require full argument, consideration of the factual circumstances and, potentially, evidence as to the dates when the alleged unlawful dealings occurred and when the estate’s right of action accrued. 5. What is material at this stage is that section 7 was plainly relevant enough to require consideration. The appellant sought remedies directed at recovery and restoration of land. The learned magistrate could not properly dispose of the suit on the basis of section 4(2) alone without first addressing whether the claim also fell within the statutory framework governing recovery of land. 6. Section 26 of the Act was similarly relevant. It provides that where an action is based on the fraud of the defendant or where the right of action is concealed by the fraud of a person, time does not begin to run until the claimant has discovered the fraud or could, with reasonable diligence, have discovered it. 7. The appellant pleaded that the impugned transactions came to light after strangers entered the land and commenced activities thereon, which prompted investigations at the Lands Registry. Whether that allegation will ultimately be proved is a matter for trial. It cannot be resolved at this stage. 8. The important point is that the question of discovery of fraud is ordinarily a factual inquiry. It involves examination of when the claimant obtained actual knowledge of the impugned transactions, whether the claimant could reasonably have discovered them earlier, what information was available and whether the alleged conduct was concealed. Such matters rarely lend themselves to summary determination unless the pleadings leave no room for factual controversy. 9. The learned magistrate was therefore required to consider whether the appellant’s pleaded allegations brought section 26 into play and whether the date of discovery of the alleged fraud was capable of determination as a pure point of law. The impugned ruling does not demonstrate that the court undertook that inquiry. 10. I emphasise that this Court is not making a definitive holding that section 7, section 26, or both, will ultimately save the suit from limitation. The trial court must determine the applicable provision or provisions after considering the pleadings, the evidence and the arguments that may be advanced by the parties. 11. The finding in this appeal is narrower. The nature of the pleadings and the remedies sought made it necessary for the court to consider more than section 4(2). The question whether the suit was time barred could not safely be resolved solely on the basis that fraud had been pleaded. **J. WHETHER THE ISSUE OF LEAVE PROPERLY AROSE** 1. The learned magistrate also observed that the appellant had not sought leave to file the suit outside the limitation period. I notethat observation did not arise from the issue that was before the court. 2. The preliminary objection raised the question whether the suit was statute barred. There was no application for extension of time before the court. Neither party invited the court to determine whether leave had been sought, whether it was available or whether it ought to have been granted. 3. The Limitation of Actions Act does not confer a broad and general jurisdiction to enlarge time in every category of claim. The power to extend time is statutory and limited to the circumstances expressly provided by the Act. It is therefore not correct to assume that every party faced with a plea of limitation was obliged to seek leave before filing suit. 4. The proper issue before the learned magistrate was whether, upon a correct characterization of the suit and consideration of the relevant provisions of the Limitation of Actions Act, the appellant’s claim was barred. The issue of leave did not assist in resolving that inquiry and diverted attention from the more fundamental question of the applicable statutory framework. **K. APPROPRIATE RELIEF** 1. Having found that the learned magistrate did not properly characterize the suit or consider the potentially applicable limitation provisions before dismissing it, the question becomes the appropriate appellate relief. 2. The Court could not, on the present record, determine the merits of the appellant’s claim to the land, the legality of the impugned transactions, the alleged fraud, the validity of the resultant titles, the date when the cause of action accrued or the date when any alleged fraud was discovered. Those are matters which may require evidence and should be determined by the court of first instance after a full hearing. 3. The appropriate course is therefore to set aside the ruling and remit the matter for hearing and determination on the merits. That course respects both the importance of limitation statutes and the equally important principle that a claim should not be summarily terminated where the legal and factual foundation for the limitation plea has not been adequately examined. 4. The learned magistrate has already expressed a concluded view on the viability of the suit. In the interests of fairness and to preserve the confidence of all parties in the process, the matter should be placed before the Chief Magistrate, Mumias Law Courts, for allocation to another magistrate of competent jurisdiction. This is a case-management direction and does not imply any personal criticism of the learned magistrate. **L. DISPOSITION** 1. In the result, the appeal succeeds. I make the following orders: 2. The appeal is hereby allowed. 3. The ruling and consequential orders delivered on 16th July 2024 by Hon. G. P. Omondi, Senior Principal Magistrate, in Mumias MCELC No. 35 of 2019 are hereby set aside. 4. Mumias MCELC No. 35 of 2019 is remitted to the Chief Magistrate, Mumias Law Courts, for allocation, hearing and determination on its merits before a magistrate of competent jurisdiction other than the learned magistrate who delivered the impugned ruling. 5. Costs of this appeal shall abide the outcome of the suit before the subordinate court. 6. The lower court file shall be transmitted to the Chief Magistrate, Mumias Law Courts, within fourteen (14) days of this judgment for further directions. 7. It is so ordered. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT VIHIGA THIS 14TH DAY OF JULY 2026. **P. MUSYIMI** **JUDGE** **Appearances** For the Appellant: Namatsi & Company Advocatess For the 1st Respondent: Ms. Kuchio & Company Advocates For the 2nd and 3rd Respondents: Ms Phoebe Munihu Adv For the 4th to 23rd Respondents: Ms. Ayata Adv h/b for Ms. Mwihaki Court Assistant: Mr. Ajevi