https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3597

Kariuki & another v Osotua Villas Ltd & another (Environment and Land Case E053 of 2025) [2026] KEELC 3597 (KLR) (Environment and Land) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3597 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Case E053 of 2025 MC Oundo, J June 11, 2026 Between Paul Gathuru Kariuki 1st Plaintiff Jaine Wambui Kariuki 2nd Plaintiff and Osotua Villas Ltd 1st Defendant Icon Hotels Group Africa Ltd 2nd Defendant Ruling 1.The instant suit was instituted vide a Plaint dated 4th November 2025 wherein the Plaintiffs sought for the following orders:i.A declaration that the 1st Defendant’s decision to covert the housing development project constructed on L.R No. 9134 (original number 404/8) to a hotel without the Plaintiffs’ knowledge, consent, approval and/or authority is unfair, illegal and the same violates the Plaintiffs’ right to property under Article 40 of the Constitution.ii.An order that the management contract executed between the 1st and 2nd defendants be forthwith terminated.iii.An order granting the Plaintiffs vacant possession of studio apartment No. 16 (116).iv.Kshs. 150,000/= per month from 30th June 2013 to date.v.Costs of the suit.vi.Interest on (iv) above from the date of filing the suit until payment in full. 2.In response to the Plaintiff’s Plaint, whereas the 1st Defendant filed a Notice of Preliminary Objection dated 2nd December 2025, the 2nd Defendant filed a Notice of Motion Application dated 23rd January 2026. Consequently, what is before me for determination is the said Preliminary Objection and the Notice of Motion Application. 3.In its Notice of Preliminary Objection, the 1st Defendant raised a preliminary objection against the Plaintiff’s suit on the following grounds:i.The Honourable Court lacks jurisdiction to entertain the instant suit as the dispute is subject to an arbitration clause contained in the agreement dated 7th November 2012 between the Plaintiff and the 1st Defendant.ii.The parties are contractually required to exhaust the arbitration process before invoking the Court’s jurisdiction. The suit is therefore premature and offends the doctrine of exhaustion. 4.The 2nd Defendant’s Notice of Motion Application, on the other hand, is expressed to be brought pursuant to the provisions of Order 2 Rule 15 (1) (a), (b) & (d) of the Civil Procedure Rules, 2010 and Section 1A, 1B &3A of the Civil Procedure Act, wherein it has sought the following orders:i.That the Plaintiffs’ Plaint dated 4th November 2025 be struck out and the suit dismissed with costs insofar as it relates to the 2nd Defendant.ii.That in the alternative, the name of the 2nd Defendant be struck out of the suit with costs.iii.That the costs of the Application be borne by the Plaintiff. 5.The said Notice of Motion was premised on the grounds therein as well as the Supporting Affidavit of equal date sworn by Fredrick Kariuki Maina, the Director and CEO of the 2nd Defendant who deposed that the 2nd Defendant is a limited liability company whose primary business is the management of Hotel properties on behalf of various owners and argued that at all material times, the 2nd Defendant had acted solely as a Hotel Management Agent for the 1st Defendant, who is the registered owner of the suit property known as LR. No. 9134 (Original number 404/8), but had no proprietary interest, ownership or title to the suit property. 6.He contended that the instant dispute revolves around ownership and handing over of the suit property after completion, which is a matter strictly between the Plaintiffs and the 1st Defendant as the property owner. He argued that, as an agent of a disclosed principal (the 1st Defendant), the 2nd Defendant cannot be held personally liable for actions taken within the scope of its mandate as a manager. Consequently, the Plaint disclosed no reasonable cause of action against the 2nd Defendant; therefore, its inclusion in the proceedings herein was scandalous, frivolous, and an abuse of the court process. 7.He thus deposed that it is in the interest of justice that the 2nd Defendant be struck out from further unnecessary litigation costs. 8.In response and opposition to the 2nd Defendant’s Application, the Plaintiff filed Grounds of opposition dated 24th March 2026 opposing the same on the following grounds:i.The application is fatally defective for violating the provisions of Order 2 Rule 15 (1) (a) and Order 2 Rule 15 (2) of the Civil Procedure Rules.ii.The application lacks merit as the 2nd Defendant was sued for operating the Plaintiffs’ studio unit as a hotel room and receiving income from it without their authority and/or permission, and failing to account for the money received.iii.The Plaint as drawn by the Plaintiff discloses a reasonable cause of action against the 2nd Defendant.iv.The 2nd Defendant has not met the requisite threshold for striking out a pleading. 9.The 1st Defendant did not oppose the 2nd Defendant’s Application herein, nor did the 2nd Defendant oppose the 1st Defendant’s Notice of Preliminary Objection herein. 10.The Preliminary Objection and the Notice of Motion Application herein were disposed of by way of written submissions which I shall proceed to summarize as herein under. 1st Defendant’s Submissions. 11.In its submissions dated 24th March 2026 in support of its Notice of Preliminary Objection dated 2nd December 2025, the 1st Defendant outlined its issues for resolution as follows:i.Whether the Honourable Court has jurisdiction to entertain the suit in light of the arbitration agreement between the parties.ii.Whether the Plaint offends the Doctrine of Exhaustion of Statutory Remedies. 12.On the first issue for determination, it contended that the court lacks jurisdiction ab initio to entertain the suit as presently framed and must consequently down its tools. It relied in the case of Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696 to assert that a Preliminary Objection consists of a pure point of law which, if argued successfully, may dispose of the entire suit without the need for evidence. It argued that the issues raised in the instant suit go directly to jurisdiction, which is a threshold issue and a proper subject of a Preliminary Objection. 13.That it is not in dispute that the Plaintiffs’ claim arises from a sale agreement dated the 7th November, 2012, entered into between the Plaintiffs and the 1st Defendant for the purchase of a studio apartment within the development known as Osotua Luxury Resort. That, however, the said agreement contained a valid and binding arbitration clause, by which the parties had expressly agreed that any dispute arising therefrom would be referred to arbitration. He reiterated the contents of clause I of the said agreement contending that the Plaintiff had neither challenged the validity of the arbitration clause nor pleaded that it was null, void, inoperative or incapable of being performed, but had instead approached the Honourable Court in the first instance in complete disregard of the agreed dispute resolution mechanism, wherein this conduct was contrary to the provisions of Section 6 (1) of the Arbitration Act. It maintained that the instant dispute had arisen wholly from the contractual relationship between the parties, and that the Plaintiffs’ claims, including breach of contract, misrepresentation, failure to hand over possession, and loss of income, fell squarely within the scope of the arbitration clause. Accordingly, the Honourable Court lacked jurisdiction to entertain the dispute herein in the first instance. 14.On the second issue, namely whether the Plaint offends the Doctrine of Exhaustion of Statutory Remedies, it was maintained that, in the instant case, the parties had expressly agreed, under the sale agreement dated 7th November, 2012, to refer any dispute arising therefrom to arbitration, and that the agreement provided a clear, adequate and binding mechanism for the resolution of disputes between the parties. However, the Plaintiff had failed and/or neglected to invoke the arbitration process or refer the dispute to an arbitral tribunal for determination in the first instance, but had instead prematurely approached the Honourable Court in disregard of the agreed dispute resolution mechanism. 15.It placed reliance on the decision in the case of Muthinja & another v Henry & 1756 others (Civil Appeal 10 of 2015) [2015] KECA 304 (KLR) (30 October 2015) (Judgment), where the Court of Appeal sitting in Nyeri had emphasized that courts ought to be a forum of last resort to contend. That no exceptional circumstances have been pleaded or demonstrated by passing the agreed arbitration process; thus, the case is premature, misconceived, and offends the doctrine of exhaustion and the principle of party autonomy. 16.That in any event, the Plaintiff’s claim appears on the face of the pleadings to raise issues of limitation of actions, which went to the jurisdiction of the Honourable Court. It acknowledged that, although the said issue had not been expressly raised in its Notice of Preliminary Objection, having been discovered only during the preparation of the submissions herein, it invited the Court to take cognisance of it as a jurisdictional question. 17.In conclusion, it is submitted that the Honourable Court lacks jurisdiction to entertain the present suit in the first instance. The Plaintiffs had prematurely invoked the Court’s jurisdiction in clear violation of the binding arbitration agreement, thereby rendering the suit incompetent and an abuse of the court process. 18.It thus urged the Honourable Court to uphold the Preliminary Objection, strike out the proceedings herein, refer the dispute to arbitration in accordance with the agreement dated 7th November 2012, and award costs to the Defendants. 2nd Defendant’s Submissions. 19.In support of its Notice of Motion Application dated 23rd January 2026 the 2nd Defendant framed three (3) issues for determination as follows:i.Whether the Plaint discloses a reasonable cause of action against the 2nd Defendant.ii.Whether the 2nd Defendant is a proper or necessary party to the Suit.iii.Who bears the Costs of the Application? 20.On the first issue for determination, reliance was placed on the provisions of Order 2 Rule 15 (1) (a) (sic), which empowers the court to strike out a pleading if it discloses no reasonable cause of action. It was contended that there was no dispute that the 2nd Defendant is merely a management company acting as agent for the 1st Defendant, and that under paragraph 7 of the Plaint dated 4th November 2025, no particulars of breach, misrepresentation and illegalities had been attributed to the 2nd Defendant/Applicant, requiring them to respond to. That, in any event, it is a settled principle of law that an agent of a disclosed principal cannot be sued for the principal's acts. Furthermore, the 2nd Defendant held no proprietary interest in the suit property; it cannot satisfy any orders regarding land ownership or possession, which cannot be cured by an amendment. To buttress his position, reliance was placed on the case of Joseph Okoto v Edwin Dickson Wasunna [2023] KEHC 146 (KLR), where the court had cited the case of D.T Dobie & Company (Kenya) Ltd.v Muchina [1982] KLR 1 at p.9. 21.On the second issue, namely whether the 2nd Defendant is a proper or necessary party to the suit, it contended that its inclusion in the present suit was frivolous and vexatious. It argued that a party should be joined only if their presence is necessary for the court to adjudicate the matter effectively and completely. Since the dispute herein appears to be proprietary in nature, where the 2nd Defendant is only a manager, no relief can be legally sought against it. It was thus its submission that continuing the suit against it was an abuse of the court process and subjected the 2nd Defendant to unnecessary legal costs, as it was not a party to any agreement between the Plaintiffs and the 1st Defendant. 22.It maintained that it is a fundamental principle of law that, where a principle is disclosed, the agent cannot be sued for acts done on behalf of the principal and placed reliance on the case of City Council of Nairobi v Wilfred Kamau Githua t/a Githua Associates & Another [2016] eKLR, where the Court of Appeal had cited the case of Anthony Francis Wareham t/a Wareham & 2 others v Kenya, Post Office Savings Bank, Civil Application No. NAI 5 and 48 of 2002, at page 10. That in matters involving land before the ELC, a party must have a proprietary interest to be a necessary party. 23.Lastly, it submitted that since costs follow the event, the costs of the application should be borne by the Plaintiffs and payable to the 2nd Defendant. That the Notice of Motion has merit in law, and the court should strike out the Plaintiff’s suit against the 2nd Defendant with costs. Plaintiffs’ Submission 24.The Plaintiffs argued that while the foundational history of the project involves the sale agreement, the actual claims in this suit fell outside the terms and scope of that contract. The suit challenges tortious and illegal actions, including the unauthorised conversion of the residential project into a hotel and the hiring of a third party to manage their unit being Studio Apartment No. 116, without their knowledge or consent. 25.They reiterated that none of their prayed-for reliefs, such as vacant possession and accounting for rental income, emanated from the text of the 2012 sale agreement. The Plaintiffs contended that the 1st Defendant's Preliminary Objection was procedurally flawed and legally untenable for the reasons that :i.The court must assume the facts pleaded in the Plaint are correct. That is because the 1st Defendant chose to file a Preliminary Objection rather than a Statement of Defence; they legally admitted every statement in the Plaint, including the unlawful conversion of the property.ii.The Plaintiffs argued that private contracts cannot strip the court of its jurisdiction. Only an Act of Parliament can donate or divest judicial authority. Contractual arbitration clauses merely allow a party to request a temporary stay of proceedings, not a dismissal of the suit.iii.That under Section 6 of the Arbitration Act, the proper mechanism to enforce an arbitration clause was through a formal application for a stay of proceedings, and not by a preliminary Objection to strike out the suit.iv.That whereas in determining whether a genuine contractual dispute exists, or whether the clause is operative, required an interrogation of evidence, a preliminary objection was strictly reserved for pure points of law and cannot be used where evidence must be weighed. 26.In opposition to the 2nd Defendant’s Notice of Motion, the Plaintiffs requested the court to dismiss the application for the reason that the same had been brought under Order 2 Rule 15(1)(a) thus disclosing no reasonable cause of action. That under Rule 15(2) of the said provision of the law, applications asserting a lack of cause of action were explicitly prohibited from using external evidence. They asked the court to look only at the face of the Plaint. 27.They also submitted that by attaching and relying on a supporting affidavit by CEO Fredrick Kariuki Maina, the 2nd Defendant violated mandatory procedural rules, rendering their entire application fatally defective and incompetent. 28.The second reason given for the dismissal of the application was that the 1st Defendant had no legal authority to sign a management agreement over Studio 116 with the 2nd Defendant. Because the underlying management contract was unauthorised and illegal, the 2nd Defendant could not hide behind the shield of being an “agent” of a disclosed principal. 29.That there was a clear cause of action existing because the 2nd Defendant actively runs/operates the Plaintiffs’ private property as a commercial hotel room and intercepts rental income without accounting for or delivering those funds to the Plaintiffs. 30.If the 2nd Defendant had conducted basic due diligence, it would have realised that the development consists of individually owned units requiring individual consent. 31.The Plaintiffs emphasized that striking out a pleading at the preliminary stage was a draconian measure and should only be exercised in clear-cut, obvious cases where a pleading is a complete and un-amendable sham. This was not the case with their Plaint. 32.In support of their submissions, the Plaintiffs relied on the decisions in the cases ofi.Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors (1969) EA 696 to emphasize that a Preliminary Objection must accept the Plaintiff's facts as true and cannot resolve matters requiring factual investigation.ii.Match Electricals Limited v. China Railway No. 10 Engineering Group Co. Ltd (2005) eKLR that established that a mere mention of a contract does not trigger arbitration; there must be a real, live dispute falling strictly within the terms of that clause.iii.UAP Provisional Insurance Co. Ltd v. Michael John Beckett [2013] eKLR, which confirmed that if a dispute falls outside the specific boundaries of an arbitration agreement, the court remains the only correct forum.iv.Niazsons (K) Ltd v. China Road & Bridge Corporation (K) Ltd (2001) eKLR, where it had been held that a mere refusal to pay a debt is not inherently an arbitral dispute. Crucially establishes that clauses seeking to fully oust the court's jurisdiction are void as a matter of public policy.v.Nixon Omondi Abira v. Maxcure Hospitals Limited [2024] eKLR and Stratogen Limited v. The County Government of Kisii [2023] eKLR, which reinforced that the existence of an arbitration clause does not strip a court of its jurisdiction; it only permits a statutory application for a stay under Section 6(1).vi.Devshibhai & Son Ltd v. Muhungu Limited & Another [2025] eKLR, where the finding held that introducing affidavit evidence under Order 2 Rule 15 breaks mandatory rules and makes the application procedurally incompetent.vii.Crescent Construction Co. Ltd v. Delphin Bank Ltd [2007] eKLR, which reaffirmed that the court is legally obligated to look at zero evidence (no affidavits, no statements from the bar) when evaluating whether a Plaint discloses a cause of action.viii.Olympic Escort International Co. Ltd & 2 Others v. Parminder Singh Sandhu & Another [2009] eKLR a case that confirmed that if an Applicant improperly places affidavit evidence on the record for a striking-out motion, the application should be rejected on that score alone.ix.And lastly, on D.T. Dobie & Company (K) Ltd v. Muchina (1982) KLR 1 & National Social Security Fund Board of Trustees v. Protection Custody Limited (2024) eKLR, to demonstrate that striking out a suit must be used with ultimate caution, serving only as a final resort for entirely hopeless cases. 33.They thus submitted that both the preliminary objection and the application lack merit and ought to be dismissed/declined with costs to the Plaintiffs. Determination. 34.I have considered the Plaintiffs’ Plaint dated 4th November 2025, the 1st Defendant’s Notice of Preliminary Objection dated 2nd December 2025, the 2nd Defendant’s Application dated 23rd January 2026, and the responses thereto. I have also considered the parties' submissions, the authorities cited and the applicable law. 35.The Plaintiffs filed suit against the 1st and 2nd Defendants, seeking a declaration that the 1st Defendant’s decision to convert a housing development project on L.R No. 9134 into a hotel without their consent was illegal and violated their constitutional right to property, the Plaintiff sought the termination of the management contract, vacant possession of Studio Apartment No. 16 (116), and payment of mesne profits of Kshs. 150,000/= per month from 30th June 2013 to date, plus interest and costs. 36.In response, the 1st Defendant filed a Notice of Preliminary Objection seeking to stop the court proceedings based on the grounds that the dispute was subject to an arbitration clause contained in an agreement dated 7th November 2012 between the Plaintiffs and the 1st Defendant and secondly that the suit was premature because parties are contractually required to exhaust the arbitration process before approaching the Court. 37.The 2nd Defendant, via its Notice of Motion, sought to be removed from the suit and to have the Plaint struck out/dismissed with costs, citing that it was merely a hotel management agent hired by the 1st Defendant and held no title or ownership stake. The dispute was strictly about ownership and the handover of the property, which was a matter between the Plaintiffs and the 1st Defendant. As an agent of a disclosed principal, it could not be held personally liable. Lastly, the Plaint disclosed no reasonable cause of action against it; thus, its inclusion was scandalous, frivolous, and unnecessarily costly. 38.The Plaintiffs’ Response to the 2nd Defendant’s application had been that it violates procedural rules, specifically Order 2 Rule 15 (1) (a) and (2) of the Civil Procedure Rules. That the 2nd Defendant was rightfully sued for operating the Plaintiffs’ studio unit as a hotel room, generating and receiving income from it without authority, and failing to account for those funds; and, lastly, that the 2nd Defendant had failed to meet the strict legal standard required for a court to strike out a pleading. 39.I have considered the sale agreement dated the 7th November 2012, between the Plaintiff and the 1st Defendant as well as the impugned clause (I) herein produced verbatim as follows;“Arbitration.All claims and disputes howsoever arising under this Agreement shall be referred to arbitration in accordance with the provisions of the Arbitration Act of Kenya (Act No. 4 of 1995) by a single Arbitrator to be appointed by agreement between the parties or, failing agreement within fourteen (14) days of the notification by either party to the other of the existence of a dispute or claim, to be appointed by the Chairman for the time being of The Chartered Institute of Arbitrators Kenya Chapter on application of either party.” 40.What arises for my determinations is;i.Whether the 1st Respondent’s Preliminary Objection seeking to strike out the suit raises a pure point of law or requires factual inquiry, if not,ii.Whether the suit is caught up by the limitation of actions and therefore is statute-barred, if not,iii.Whether the 2nd Defendant should be struck out of the suit. 41.On the first issue for determination, as to whether the 1st Defendant’s Preliminary Objection raises a pure point of law or requires factual inquiry, the 1st Defendant argues that his objection is purely statutory as the Court lacks jurisdiction ab initio because the dispute is governed by a binding contractual agreement to arbitrate pursuant to an arbitration clause contained in the agreement dated 7th November 2012 between the Plaintiff and the 1st Defendant. 42.Section 6 of the Arbitration Act, 1995, provides as follows:‘’(1)A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds: -(a)That the arbitration agreement is null and void, inoperative or incapable of being performed; or(b)That there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.(2)Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.(3)If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings” 43.The 1st Defendant’s Preliminary Objection seeks a full dismissal/striking out of the suit on the grounds that the court lacks jurisdiction ab initio. Section 6 of the Arbitration Act explicitly sets out the exact procedural route a party must follow to enforce an arbitration clause. It states that a party must apply to the court to stay the proceedings. 44.The statute does not say the court should dismiss the suit. The filing of a court case is essentially paused (stayed) while the parties go to arbitration. If the arbitration resolves everything, the court case dies naturally. If the arbitral process fails or encounters legal hurdles, the parties can return to the stayed court file. Indeed, an arbitration clause does not mean the court lacks jurisdiction; rather, it means the court has a statutory obligation to defer its jurisdiction and respect party autonomy upon a proper request. 45.The Court of Appeal Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] KECA 376 (KLR), observed as follows:“….A finding as to whether or not there exists a dispute capable of being referred to arbitration cannot in my view be the subject matter of a preliminary objection. Likewise, the finding one way or the other whether an arbitration agreement is inoperative or incapable of being performed also requires an examination of the evidence. It is my view that the learned judge erred in allowing the appellant to raise the three points in limine.’’ 46.As the Plaintiffs correctly argued, citing Niazsons (K) Ltd case supra, private contracts cannot divest or strip a court of its inherent jurisdiction. Only an Act of Parliament can grant or take away a court's jurisdiction. I therefore find that asking the court to strike out or dismiss a suit at the threshold via a Preliminary Objection is legally incorrect, as the court still retains the residual power to hear the matter if the clause is found to be void or inoperative. 47.A Preliminary Objection according to the decided case by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited (1969) EA. 696 was stated to be thus: -“So far as I am aware, 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. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 48.The Supreme Court in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR observed as follows:“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.” 49.It is evident that a Preliminary Objection consists of pure points of law, and it is also capable of bringing the matter to an end preliminarily. Such an objection must be argued on the assumption that all facts pleaded by the opposite party are correct, and it cannot be raised if any fact has to be ascertained or if what is sought requires the exercise of judicial discretion. 50.For a Preliminary Objection to succeed, it must pass the classic test in Mukisa Biscuit case (Supra) in that it must be a pure point of law requiring no evidence. The provisions of Section 6 of the Arbitration Act explicitly require the court to look at evidence before granting a stay because under Section 6(1)(a) and (b), the court must refuse a stay if it finds:i.That the arbitration agreement is null, void, inoperative, or incapable of being performed.ii.That there is not, in fact, any genuine dispute between the parties. 51.To determine if a clause is inoperative or if a genuine dispute exists, the court must look at affidavits, look at the parties' conduct, and inspect the contracts and because a Preliminary Objection legally bars the introduction of such evidence by choosing to file a Preliminary Objection seeking a dismissal instead of a Notice of Motion seeking a stay, I find the 1st Defendant has adopted a fatal, incompetent procedure, where the Preliminary Objection is procedurally flawed and is hereby rejected. 52.On the second issue as to whether the suit is caught up by the limitation of actions and therefore is statute-barred. Although the issue of limitation was not explicitly set out in the 1st Defendant’s Notice of Preliminary Objection, it is a well-settled principle of law that a question of limitation goes directly to the jurisdiction of the Court to grant reliefs and therefore must be determined in the first instance, whether or not it has been raised by the parties. The issue of jurisdiction can be determined by the court suo moto as it constitutes a pure point of law to which the court is bound to address. I have looked at the prayers sought by the Plaintiffs to wit;‘’REASONS WHEREFORE the Plaintiffs prays for judgment against the Defendants jointly and severally for:¬(a)A declaration that the 1Defendant's decision to convert the housing development project constructed on LR. NO. 9134 (original number 404/8) to a hotel without the Plaintiffs' knowledge, consent, approval and/or authority is unfair, illegal and the same violates the Plaintiffs' right to property under Article 40 of the Constitution.(b)An order that the management contract executed between the 1& 2 Defendants be forthwith terminated.(c)An order granting the Plaintiffs vacant possession of studio apartment No. 16 (116).(d)Kshs. 150,000 per month from 30June, 2013 to date.(e)Costs of the suit.(f)Interest on (d) above from the date of filing the suit until payment in full.’’ 53.A look at prayers (a) & (b) of the Plaintiffs Plaint, the same seek declaratory Orders and Termination of Contract, citing constitutional violations pursuant to Article 40 of the Constitution regarding the unauthorised conversion of the property into a hotel, which they state happened in or about the year 2020 (see Paragraph 7). A six-year deadline for the accrual of action would lapse in the year 2026; therefore, I find that this prayer was within the 6-year statutory limit for actions in tort or breach of general contract regarding those specific actions. 54.However, it is not in doubt that the impugned agreement between the Plaintiffs and the 1st Defendant was entered into by an agreement for sale dated 7th November 2012, whereas the Plaint herein was filed on 4th November 2025 seeking the above-captioned prayers. A detailed analysis of each prayer against the relevant statutory timelines explains how the limitation impacts this suit: 55.Section 7 of the Limitation of Actions Act provides as follows:‘’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 to him or, if it first accrued to some person through whom he claims, to that person.’’ 56.As seen above, the law provides a strict limit of twelve (12) years for any action brought to recover land or real property. According to Paragraph 5 of the Plaint, the right of action accrued on the contractually agreed completion date, 30th June 2013; thus, the 12-year statutory deadline lapsed on the 30th June 2025, and the suit was filed on the 4th November 2025, which was four months after the 12-year statutory period had lapsed. The Plaintiffs at prayer (c) of their Plaint seek vacant Possession of Studio Apartment No. 16 (116). Section 17 of the Limitation of Actions Act provides as follows;‘’Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.’’ 57.A reading of Section 17 of the Act therefore stipulates that, once the 12-year window closes without a suit being filed, the owner’s legal title to the property is extinguished. The effect of the expiration of the 12-year period is absolute. Consequently, this Court finds that the Plaintiffs' claim for vacant possession under Prayer (c) is statute-barred and must be struck out. 58.Section 4(1) of the Limitation of Actions Act stipulates as follows:‘’(1)The following actions may not be brought after the end of six years from the date on which the cause of action accrued—(a)actions founded on contract;(b)actions to enforce a recognizance;(c)actions to enforce an award;(d)actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;(e)actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.’’ 59.On the other hand, Section 8 of the same Act provides that;‘’An action may not be brought, and distress may not be made, to recover arrears of rent, or damages in respect thereof, after the end of six years from the date on which the arrears became due.’’ 60.Under Section 4(1) and Section 8 of the Limitation of Actions Act, actions founded on contract, tort, or claims to recover arrears of rent/damages for land are strictly limited to six (6) years from the date the cause of action accrued. The Plaintiffs, in prayer (d) of their Plaint, seek mesne profits/damages of Kshs. 150,000 per month from 30th June 2013 to date, Section 8 of the Limitation of Actions Act restricts the recovery of arrears of rent or damages for land to a maximum of six (6) years from the date they became due and therefore any monetary claims accruing between 30th June 2013 and 3rd November 2019 are strictly statute-barred. 61.However, because the unauthorised operation of the unit as a hotel room by the Defendants without permission constitutes a continuing tort/injury, the Plaintiffs can legally claim the day-by-day damage. The claim for mesne profits that accrued within the six years immediately preceding the filing of the suit, that is, from 4th November 2019 to 4th November 2025, is therefore legally alive and maintainable. 62.I find that on the face of the Plaint as drawn, the suit is significantly caught up by limitation. The core prayer for vacant possession is completely barred by a 4-month margin, and the monetary claim is confined to the last 6 years (from November 2019 onward). 63.On the last issue for determination, the 2nd Defendant sought to be struck out of the suit for the reason that it was merely a hotel management agent of a disclosed principal, the 2nd Defendant, and therefore, he cannot be held personally liable. That he held no title or ownership stake, and that the property matters were between the Plaintiffs and the 1st Defendant; that its inclusion in the suit was not only scandalous and frivolous but also unnecessarily costly. 64.The general objective of Order 1 Rule 10(2) of the Civil Procedure Rule is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience, and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party and should be joined. 27.The Plaintiffs raised an objection to the 2nd Defendant's Notice of Motion, arguing that because it was brought under Order 2 Rule 15(1)(a) for failure to disclose a reasonable cause of action, the deployment of a supporting affidavit violated Order 2 Rule 15(2). 28.Order 2 Rule 15(2) states with absolute clarity:‘’No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made.’’ 27.The Court of Appeal in Crescent Construction Co. Ltd v Delphis Bank Ltd [2007] KECA 500 (KLR) held as follows:‘’The court must look at the pleadings only and not go beyond the pleadings. The predecessor to this Court stated in the case of Jevaj Shariff & Co. vs. Chotail Pharmacy Stores (1960) EA 374 as follows:“The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part of it, and upon the assumption that any express or implied allegations of fact in it are true.” 27.The court thus established that where an application is brought for failure to disclose a cause of action, the court must look exclusively at the four corners of the Plaint. If an Applicant combines a ground under subrule (1)(a) with other grounds, such as subrules (1)(b) & (d) (frivolous, vexatious, abuse of process), an affidavit may be introduced, but it can only be considered in relation to those secondary grounds, and must be completely ignored when evaluating the cause of action. 28.The 2nd Defendant's application was brought under subrules (1)(a), (b), and (d). Therefore, while the application is not fatally defective in its entirety, this Court is legally bound to disregard the affidavit of Fredrick Kariuki Maina completely when assessing whether the Plaint discloses a reasonable cause of action. The Court will look strictly at the face of the Plaint. 31.Paragraphs 7 and 8 of the Plaint state that the 2nd Defendant entered into a management contract with the 1st Defendant and has actively run and operated the Plaintiffs' private unit as a hotel room since 2020 without their authority, while collecting commercial income from it. 32.While the 2nd Defendant seeks protection under agency law, arguing that it is a management agent for a disclosed principal, this protection applies only where the principal possesses the lawful authority to mandate the agent. The Plaintiffs assert that the 1st Defendant lacked lawful authority to subject their private property to a hotel management contract. If a principal has no legal right to exploit a piece of property, it cannot transfer such a right to an agent. An agent who actively enters upon private property and exploits it commercially without the true owner's consent cannot escape personal liability in tort under the shield of agency. The Plaint explicitly seeks the termination of the management contract to which the 2nd Defendant is a direct party, alongside claims for financial accounting. 33.Striking out a pleading under Order 2 Rule 15 is a draconian measure that must be exercised with ultimate caution, as stated in In D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another [1980] KECA 3 (KLR), Madan JA had observed as follows:“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.” 31.It should only be done if a suit is patently hopeless or a complete sham. Here, the Plaintiffs allege a continuous tortious interference with their property rights by the 2nd Defendant and therefore 2nd Defendant’s presence is necessary for this Court to completely and effectually adjudicate upon the validity and termination of that management contract. The 2nd Defendant is therefore a proper and necessary party to the suit. 32.Having said this, in the end, I hold as follows:i.The 1st Defendant’s Preliminary Objection dated 2nd December 2025 is partly upheld solely on the question of statutory limitation to the effect that:a.Prayer (c) of the Plaint seeking an order for vacant possession of Studio Apartment No. 16 (116) is found to be statute-barred under Section 7 of the Limitation of Actions Act.b.The Plaintiffs' monetary claim under Prayer (d) for mesne profits between 30th June 2013 and 3rd November 2019 is statute-barred under Section 8 of the Act.ii.The 1st Defendant's objection seeking the dismissal of the suit based on the contract's arbitration clause is dismissed for procedural impropriety.iii.The 2nd Defendant’s Notice of Motion Application dated 23rd January 2026 seeking to strike out the Plaint or its name from the suit is dismissed in its entirety.iv.Prayers (a) and (b) of the Plaint regarding the legality and termination of the 2020 hotel conversion contract are within time and survive to be determined at a full trial alongside the surviving portions of Prayer (d).v.Costs shall be in cause. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA, THIS 11TH DAY OF JUNE 2026.M.C. OUNDOENVIRONMENT & LAND COURT– JUDGE