https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1477

Koech v Mibei (Sued as the Administrator and Legal Representative of Joseph Kimibei Rotich (Deceased)) & 7 others (Civil Appeal E063 of 2021) [2026] KECA 1477 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1477 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal E063 of 2021 JM Mativo, MB Kairaria & AI Hassan, JJA July 24, 2026 Between Joseph Kimenjo Koech Appellant and Kenneth Kipkirui Mibei (Sued as the Administrator and Legal Representative of Joseph Kimibei Rotich (Deceased)) 1st Respondent Rose Beatrice Rotich 2nd Respondent Defla Catherine Chepkirui Totich 3rd Respondent Linet Chepkorir Rotich 4th Respondent Stellah Chemutai Rotich 5th Respondent Industrial and Commercial Development Corporation (ICDC) 6th Respondent The Land Registrar, Nakuru 7th Respondent The Attorney General 8th Respondent (Being an appeal against the ruling and orders of the Environment and Land Court of Kenya at Nakuru (J. M.Mutungi, J.) dated 15th June 2021inELC No. 45A of 2020) Judgment 1.In this appeal, the appellant is seeking to overturn a ruling dated 15th June 2021 delivered by Mutungi, J. in Nakuru Environment and Land Court (ELC) Case No. 45A of 2020. In the said ruling, the learned judge determined two preliminary objections dated 1st October 2020 and 29th September 2020 respectively. 2.A concise history of this litigation is extremely necessary in order to put into proper perspective the arguments urged by the protagonists in this appeal in support of their respective positions. Its common ground that in 1992, the 6th respondent advanced a loan of Kshs.300,000/- to one Philip Kibet Sang. As security for the said borrowing, the appellant charged title number Njoro/Ngata/2/67 and executed a Power of Attorney authorizing the borrower to secure the loan using the said property. However, the borrower defaulted in repaying the loan. As consequence, the 6th respondent commenced recovery proceedings and ultimately sold the charged property by way of public auction on 25th April 1995. The 6th respondent thereafter executed transfer documentation, facilitated Land Control Board processes, and released completion documents to the purchaser. 3.Twenty-five years later, in 2020, the appellant filed Nakuru ELC Case No. 45A of 2020 against the respondents alleging fraud, unlawful sale, and seeking cancellation of titles issued to subsequent proprietors. The Environment and Land Court upheld the two preliminary objections raised by the 1st to 5th respondents and the 7th to 8th respondents and struck out the suit on the grounds that it was statute- barred. 4.The 1st to 5th respondents’ grounds cited in their preliminary objection can be summed up as follows: (a) the appellant’s suit is time barred; (b) the 1st to 5th respondents have been in continuous uninterrupted occupation of the subject property since 1995 when the late Joseph Kimibei Rotich acquired the property, and (c) they have since acquired individual title deeds in their names. 5.In summation, the 7th to 8th respondents in support of their preliminary objection cited the following grounds: (a) the suit is a nonstarter and untenable as it has been overtaken by events and has suffered laches because it is being brought after more than 12 years from the time the cause of action first arose, if at all; (b) the claim offends Sections 7 and 8 of theLimitation of Actions Act as well as the mandatory provisions of Section 13A of the Government Proceedings Act, therefore, the court lacked jurisdiction to entertain it. 6.The preliminary objections were canvassed by way of written submissions. After considering the parties’ diametrically opposed submissions, the learned judge was satisfied that the preliminary objections raised pure points of law and struck out the suits. The learned judge stated:“24.In determining whether or not a suit is statute barred the Court is entitled to consider and review the pleadings of the parties, and such other evidence the parties may have availed by way of documents in support of their respective cases. On the evidence, it is not in dispute that the plaintiff was the registered owner of the suit property which he charged to the 6th defendant to secure a loan made to one Philip Kibet Sang who defaulted on payment prompting the 6th defendant to realise the security. The late Joseph Kimibei Rotich was registered as owner pursuant to the auction sale. The abstract of title (green card) exhibited by the plaintiff for the suit property showed the deceased was registered as owner on 31st August 2001 and the plaintiff registered a caution against the title on 1st August 2002. At the very latest the plaintiff became aware that the deceased had been registered as owner of the suit property on 1st August 2002. The plaintiff thus ought to have instituted his suit not later than 31st July 2014 when the period of 12 years expired from the date he registered the caution if the suit was not to be barred by limitation. He did not, and without doubt his suit is barred by limitation and is unsustainable.“25.In the result I find and hold the preliminary objection as relates to the suit being statute barred on account of limitation of actions to be meritorious and I uphold the same. The suit cannot be sustained and the same is ordered struck out as against all the defendants.26.The costs of the application and the struck-out suit are awarded to the defendants.” 7.Aggrieved by the above finding, the appellant instituted this appeal mainly faulting the learned judge for: (a) treating the preliminary objections as pure points of law when they involved factual disputes that required a full trial; (b) improperly delving into factual issues at the preliminary stage; (c) failing to afford both parties a hearing; (d) misapplying Section 7 of the Limitation of Actions Act; (e) failing to apply Sections 9 and 13 of the Limitation of Actions Act; (f) wrongfully holding that the doctrine of adverse possession did not apply to the dispute; (g) failed to consider evidence that undermined the respondent’s claim on adverse possession; (h) failed to consider evidence that showed that the respondents were not in open, peaceful and adverse possession of the land for 12 years; (i) failed to evaluate the appellant’s submissions and authorities; (j) departing from established legal principles without justification; (k) failed to fully evaluate the pleadings and the evidence on record. 8.The appellants pray that the impugned ruling be set aside, the preliminary objections be dismissed, the costs of the appeal and the trial court be awarded to the appellant and any other relief this Court may deem fit. 9.In support of the appeal, the appellant’s counsel relied on his written submission dated 23rd February 2026 in which he essentially urged that Sections 7 and 13 (1) of the Limitation of Actions Act must be read conjunctively and maintained that that the right of action only accrues once possession is proved. In support of this assertion, counsel relied on this Court’s decision in Njenga vs. Mugo & 3 Others [2023] KECA 18 (KLR) to argue that Section 13 of the Act restricts the applicability of Section 7 of the Act. To further buttress this argument, counsel relied on this Court’s decision in Langat & 3 Others (suing as legal representatives of the Estate of the late Jonah Kiplangat Kenduiwa vs. Sigilai [2025] 1039 (KLR) in support of his contention that Section 7 must be applied only if the conditions in Section 13 (1) are met. He reiterated that in order to demonstrate whether and when a right of action accrued in favor of the appellant, it must be established if and when possession was acquired. He submitted that possession is an issue of fact, which was contested, therefore, it does not qualify to be a preliminary objection. He also contended that the appellants are seeking to establish ownership through adverse possession. Lastly, he faulted the trial court for allowing the preliminary objections notwithstanding the fact that possession was contested. 10.In opposing the appeal, the 1st to 5th respondent’s counsel relied on his written submissions dated 22nd April 2025. Citing Section 7 of the Limitation of Actions Act, counsel argued that time starts to run from the date the cause of action accrued. Counsel maintained that this date can be determined from the pleadings. To buttress this argument, he cited Hormusji K. Hathadara & Others vs. Trustees for the Port of Aden [1964] eKLR in support of the holding that in determining whether a suit is barred by statute, the court can only look at the plaint and added that the cause of action arose in 1995 when the appellant learnt the suit property had been sold by way of public auction and transferred to the late Joseph Kimebei Rotich in 2001. He argued that at this point the appellant had the option to challenge the sale, but, 25 years lapsed before he could do so. Further, 19 years had lapsed from the date the property was registered in the name of the late Joseph Kimemebei. Counsel cited Iga vs. Makerere University [1972] EA in support of the proposition that a plaint that is barred by limitation is a plaint barred by law. He also relied on Mehta vs. Shah [965] E.A. 321 and Gathoni vs. Kenya Co-operative Creameries Ltd [1082] KLR 104 to assert that the object of limitation is to prevent a defendant against unreasonable delay in bringing suits against him. Citing Mukisa Biscuit Manufacturing Co Ltd vs. West End Distributors [1960] EA 696, counsel maintained that a preliminary objection based on Section 7 of the Limitation of Actions Act is a pure point of law and urged this Court to dismiss the appeal. 11.The 6th respondent filed written submissions dated 23rd April 2026 essentially maintaining that the impugned sale occurred in 1995 and the appellant became aware of the sale in or about 2001/2002 when he registered a caution against the title. Under Section 7 of the Limitation of Actions Act, actions to recover land or challenge disposition thereof must be brought within 12 years. Counsel submitted that the appellant instituted proceedings in 2020, nearly 25 years after the cause of action arose and well beyond the statutory limitation period. He maintained that limitation of time is a jurisdictional question, and once time has run out, the Court lacks jurisdiction to entertain the matter. 12.In our view, the germane issue urged by the appellant is two- fold. One, is the interplay between Sections 7 and 13 of the Limitation of Actions Act. Two, is the question whether a preliminary objection raised under Section 7 of the Limitation of Actions Act raises a pure point of law to qualify the threshold stated in Mukisa Biscuit Manufacturing Co Ltd vs. West End Distributors (Supra). 13.This Court has repeatedly emphasized that Sections 7 and 13 of the Limitation of Actions Act must not be read in isolation. Instead, they operate as a combined statutory mechanism that extinguishes a registered owner's title in favour of an adverse possessor. Section 7 sets the time bar (12 years), while Section 13 defines the specific character of possession required to start, sustain, and complete that timeline. (See this Court’s decision in Ndolo vs. Kitulu & 8 Others (Civil Appeal 394 of 2018) [2022] KECA 1289 (KLR) (18 November 2022) (Judgment). 14.Section 7 provides that 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. Section 13 elucidates that a right of action to recover land does not accrue or continue unless the land is in the actual possession of someone in whose favour the period of limitation can run. (See Ndolo vs. Kitulu & 8 Others (supra). The 12-year period in Section 7 is a floating countdown. It remains dormant until Section 13 triggers it by the entry of an adverse possessor onto the property. If the adverse possession lapses, breaks, or converts into permissive use, Section 13 stops the clock, rendering Section 7 inapplicable. 15.This Court’s decision in Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] KECA 532 (KLR), is a locus clasicuss decision explaining the cohesive nature of the Act. The Court in the above decision was emphatic that the combined effect of Sections 7, 13, and 17 is to systematically strip away the paper owner's rights. Section 13 establishes the operational criteria (open, peaceful, uninterrupted possession), which fuels the Section 7 timeline. Once Section 13 conditions run parallel with the Section 7 timeline for 12 complete years, Section 17 immediately executes the finality by extinguishing the original owner's title. (See M’Riria & 5 Others vs. Muthomi (Civil Appeal 253 of 2019) [2025] KECA 951 (KLR) (4 April 2025) (Judgment)). 16.The next question which in our view is the definitive question in this case is whether considering the inter-play between Sections 7 and 13 of the Limitation of Actions Act, the two preliminary objections raised in this case raised pure questions of law. This Court has severally held that an objection premised on Section 7 of the Limitation of Actions Act (Cap 22) is generally treated as a mixed question of law and fact, rather than a pure question of law. 17.For any objection to qualify as a "pure question of law" capable of summarily disposing of a suit via a preliminary objection, it must satisfy the stringent criteria established in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (supra). A valid preliminary objection: (a) must raise a pure point of law; (b) must be argued on the absolute assumption that all facts pleaded by the opposite side are correct. (c) it cannot be raised if any fresh fact needs to be ascertained, or if the court must look beyond the pleadings to resolve a dispute. 18.Undeniably, Section 7 bars actions to recover land after 12 years from the date the cause of action accrued. However, determining when that 12-year clock began ticking under Section 13 always presents dynamic factual contests. This Court in Divecon Limited vs. Samani [2002] 1 EA 54 firmly established that a plea of limitation of actions is fundamentally a mixed question of law and fact. The court held that “because a limitation defense requires calculating specific timelines and proving the character of occupation, it cannot be neatly carved out as a preliminary point of law. Litigants must plead limitation in their defense and allow the matter to go to full trial rather than seeking summary dismissal.” 19.By now it is manifestly clear that the question whether a land recovery suit is time-barred is heavily dependent on an inquiry into facts. Where entry or possession is contested, determining the exact date an adverse possession entry occurred or evaluating if the true owner asserted their rights requires empirical evidence. Therefore, this requirement renders the two preliminary objections incompetent for being outside the purview of the definition of what constitutes “a pure question of law.” Accordingly, we are persuaded that the appellant’s appeal is merited. The learned judge fell into grave error when he failed to evaluate and appreciate the interplay between Sections 7 and 13 of the Limitation Actions Act and by disregarding the catena of the decisions rendered by this Court interpreting the said provisions. The learned judge also erred in failing to appreciate that the adverse possession urged before him raised mixed issues of law and fact which required evidence to be established. Accordingly, we allow this appeal and issue the following orders:a.The ruling rendered by Mutungi, J on 15th June 2021 Nakuru ELC Case No 45A of 2020 and all consequential orders be and are hereby set aside.b.The order allowing the two preliminary objections dated 1st October 2020 and 29th September 2020 respectively is set aside and substituted with an order dismissing the two preliminary objections.c.That Nakuru ELC Case No 45A of 2020 is hereby remitted back to the trial court for hearing on merits.d.The respondents shall pay the appellant costs of this appeal. DATED AND DELIVERED AT NAKURU THIS 24TH DAY OF JULY, 2026.J. MATIVOJUDGE OF APPEAL....................................MURUNGI B. KAIRARIAJUDGE OF APPEAL....................................AHMED ISSACKJUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.