https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4298

Sing'oei (Suing as the administrator of the Estate of the L/ate Kiptarus Arap Rop) v Boit & 4 others (Land Case E056 of 2024) [2026] KEELC 4298 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4298 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Land Case E056 of 2024 CN Ondieki, J July 13, 2026 Between Kiprono Kemei Sing'oei (Suing as the administrator of the Estate of the Late Kiptarus Arap Rop) Plaintiff and Willy Kiplimo Boit 1st Defendant Edwin Ligabo Anjila 2nd Defendant Cemtech Limited 3rd Defendant Monica Chumutai Tarus 4th Defendant Land Registrar Uasin Gishu County 5th Defendant Ruling Part I: Introduction 1.Vide a Plaint dated 26th June 2024 and filed on 27th September 2024, the Plaintiff brought this action against the Defendants primarily seeking Judgment for:i.An order that the 5th Defendant cancels the title deeds issued in respect to sud-divisions of Uasin Gishu Mile thirteen Settlement Scheme/31 as particularized in the Plaint (hereinafter “the suit property”);ii.A permanent injunction against the Defendants;iii.Compensation for mesne profits;iv.General and aggravated damages; andv.Costs of the suit. 2.Except the 5th Defendant who has never entered appearance, the other Defendants opposed the suit. Part Ii: The 2Nd Defendant/objector’s Preliminary Objection 3.On 24th March 2026, the 2nd Defendant/Objector (hereinafter “the Objector”) filed a Notice of Preliminary Objection (hereinafter “the PO”) dated 23.3.2026 on grounds that the suit is time-barred by operation of section 7 of the Limitation of Actions Act, asserting that this suit was filed 13 years after the cause of action arose. It is on this basis that the Objector sought an order of this Court dismissing the suit in its entirety and attendant costs. 4.In his written Submissions dated 26th May 2026 and filed on 5th June 2026, learned Counsel Mr. Ndung’u instructed by the Firm of Messieurs J & J Company Advocates representing the Objector, rehashed the substance of the PO. 5.Regarding the question whether this objection has surmounted the threshold of a Preliminary Objection that it must raise a point of law, Counsel submits that in accord with Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696; and Oraro vs. Mbaja 1 KLR 141, this objection raises purely a point of law, without disputed facts. In this regard, it is argued that it is indisputable that the transaction took place in or about 2011 and the suit was filed in 2024. 6.As to whether this claim is time-barred and that as a consequence, this Court is deprived of jurisdiction to hear and determine it, it is argued that properly speaking, this suit is for recovery of land and in this connection, it is urged that since it is indisputable that the transaction took place in or about 2011 and that the suit was filed in 2024 on the 13th year, this claim is time-barred and that the time cannot be extended by a Court of law, placing reliance in Gathoni vs. Kenya Co-operative Creameries Ltd [1982] KLR 104. It is further urged that upon expiry of the 12 years, section 7 of the Limitation of Actions bars recovery and section 17 thereof extinguishes the title of the person whose limitation period has expired, placing reliance upon Kimani vs. Murei [2025] KEELC 6557 (KLR). 7.Besides, it is argued that this claim is not based on any of the grounds set out under section 26 of the Limitation of Actions which stop time from running, including fraud or mistake of fact, adding that fraud must be pleaded, particularized and proved in line with the COA holding in Vijay Morjaria vs. Nansingh Madhusingh Darbar & another [2000] eKLR; and Kinyanjui Kamau vs. George Kamau Njoroge [2015] eKLR. In this connection, it is argued that generalized allegations of fraud cannot suffice. 8.Further and in alternative, it is argued that if the claim is based on a contract or seeking an order of specific performance, then it is also barred by dint of section 4(1)(a) of the Limitation of Actions Act which caps the period at 6 years, citing the position in this regard as held in Cheruiyot vs. Chebochok & 3 Others [2023] KEELC 18175 (KLR). Part Iii: The Plaintiff/respondent’s Submissions On The Po 9.In his written Submissions dated 12th June 2026 and filed on 13th June 2026, learned Counsel Mr. Ngarngar instructed by the Firm of Messieurs Kipkosgei & Company Advocates representing the Plaintiff/Respondent takes a position that the objection does not surmount the test of a PO as enunciated in Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696; Nadrea vs. Chiwaya & 13 others [2024] KEELC 4265 (KLR); Jubilee Insurance Company Limited vs. Nyaema & 4 others [2024] KEHC 6803 (KLR); and Muturi vs. Sifuna [2024] KEHC 11299 (KLR), having been raised in circumstances where facts have to be ascertained by the Court. 10.Regarding whether the suit is time-barred, placing reliance upon the Plaint in which fraud has been pleaded; section 26 of the Limitation of Actions Act which enacts that time does not start to run until the fraud is discovered; and Jubilee Insurance Company Limited vs. Nyaema & 4 others [2024] KEHC 6803 (KLR), where it was held that time starts to run from the date of discovery of the fraud, it is urged that this suit is not time-barred since the Plaintiff discovered the fraud sometimes in 2023. 11.Counsel thus urges this Court to find the PO without merit and dismiss it with costs to the Claimant. Part Iv: The 1St, 3Rd, 4Th And 5Th Defendants Response 12.There was no formal or informal response from the 1st, 3rd and 4th Defendants. The 5th Defendant did not enter appearance. Part V: Questions For Determination 13.Commending themselves for determination - gleaning from the PO and the rival written submissions - are three questions as follows:i.Whether the 2nd Defendant/Objector’s Objection has surmounted the test of a Preliminary Objection (as to be sustainable).ii.Whether this suit is time-barred in the context of section 7 of the Limitation of Actions Actiii.Which party should bear the costs of this Application? Part Vi: Analysis And Determination Whether the 2nd Defendant/Objector’s Objection has surmounted the test of a Preliminary Objection (as to be sustainable) 14.First, at the outset, this Court is cognizant that this plea falls in the class of actions conceptually known as actio praejudicialis (a preliminary action seeking determination of a preliminary issue on which other primary issues proposed for litigation depend). This court is further cognizant that this preliminary plea further falls in the class of actions conceptually known as actio non or actionem non habere debet (a plea which seeks a declaration of this court that the Plaintiffs/Respondents have been deprived of the right to maintain this action by filing it out of timeline of 12 years limited by section 7 of the Limitation of Actions Act). 15.Second, such a plea is dispositive in nature. This court thus entertains no doubt that a PO can properly so be dispositive of a suit, provided that the objection is anchored on a pure point of law, unblemished with either disputed or contested or unascertained facts which can only be established in a trial or immediately unascertainable facts which can only be established in a trial. It follows that a PO, properly so, is a pure point or question of law which has been pleaded, or which arises by clear implication of the pleadings, and which if argued as a preliminary point, is capable of disposing the suit. However, it does not mean that a PO is raised in a vacuum. It should properly so be predicated on either facts of common cause or undisputed or contested or ascertained or immediately ascertainable facts. See the Court of Appeal (hereinafter “COA”) rendition in the cause celebre and now locus classicus decision in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 (hereinafter “the Mukisa case”), at page 700, where Law JA (as he then was) expressed a judicial view that “So far as I’m 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.” In the Mukisa case, Sir Charles Newbold, P (as he then was), at page 701, reasoned that “A preliminary objection is in the nature of what used to be a demurrer. It arises a pure point of law which is argued on the assumption that all the facts pleaded by the other side or correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” The Supreme Court of Kenya (hereinafter “SCORK”) has since affirmed the rendition in the Mukisa case. See for instance Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR, where SCORK stated as follows: “Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.” It follows that if any Motion which claims to be a PO, as a matter of necessity, is predicated on a question or fact which calls for proof or authentication or ascertainment, as a matter of legal principle, the question should set down for hearing and determination. In Oraro vs. Mbaja [2005] 1 KLR 141, Ojwang J. (as he then was) citing in approval the Mukisa Biscuit case(supra) held as follows: “1. A preliminary objection correctly understood, is a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. 2. Any assertion which claims to be a preliminary objection, and yet it bears s factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. 3. If a matter comes before the Court dressed as a “preliminary objection” it will not come co-exist with such factual scenarios as may lead to the Court to exercise its discretion by virtue of Section 3A of the Civil Procedure Act. 4. The Court’s discretion is never exercised just on the basis of proposition of law: there must be a factual situation of which the Court takes cognizance, and in relation to which its equitable conscience is exercised. 5. It has to be appreciated that the Court’s discretion exercised by virtue of Section 3A of the Civil Procedure Act is always of for the purpose of upholding the law as far as is possible; and this would require preserving the claims of parties so that they may be heard and determined according to law. 6. The Applicant’s plea is that the Respondent’s pleadings be terminated in limine. There is no consistency between such a prayer, which belongs to the normal practice attending preliminary objection (matters of law), on the one hand, and the case for ensuring fair trial which the Applicant has also urged, on the other hand.” 16.Third, and joined at the hip with the foregoing is the position that it is now established law, that a PO can properly so be raised in regard to the time limited to file a claim under any law, including the Limitation of Actions Act. 17.This Court will be guided by the three legal principles discussed above. 18.Upon subjecting the said Objection to the test of a Preliminary Objection discussed at length above, and upon addressing my judicial mind to the factual issues raised by the Objector and principally that time started to run in 2011; and upon juxtaposing the Objector’s assertion to the Plaintiff/Respondent’s rebuttal to the effect that time did not start to run in 2011 but in 2023 when the fraud was discovered; and upon taking into account that fraud is pleaded and particularized in the Plaintiff/Respondent’s said Plaint, and upon subjecting the resultant issues to section 26 of the Limitation of Actions Act which provides that time does not start to run until the fraud is discovered which then becomes a triable issue, and persuaded by the rendition in Jubilee Insurance Company Limited vs. Nyaema & 4 others [2024] KEHC 6803 (KLR), where it was held that time starts to run from the date of discovery of the fraud - it is the finding of this Court and it is so concluded that the objection has failed the test of a PO having not been anchored on a pure point of law and instead erected upon disputed, contested, unascertained and immediately unascertainable facts which can only be established in a trial, since the principal question - question (ii) - cannot properly so be determined without venturing into an in-depth examination of disputed evidential issues whether time started to run on the date of the Sale Agreement in 2011 as asserted by the Objector or in 2023 by dint of fraud as averred in the Plaint by the Plaintiff/Respondent, which issue is appropriate for plenary action as opposed to summary procedure, and should therefore be settled after hearing parties. The PO, therefore, takes the impermissible posture of constraining this Court, as a matter of necessity, to venture into a protracted analysis and examination of the said disputed, contested, unascertained and immediately unascertainable fact of when time started to run. 19.It is this basis that I conclude this Objection has failed the test of a Preliminary Objection and consequently unsustainable. In any event, granted that this finding does not at all oust the 2nd Defendant’s right of prosecuting this factual issue and calling evidence thereon at the hearing stage, the 2nd Defendant will absolutely suffer no prejudice which is irreparable by costs. Whether this suit is time-barred in the context of section 7 of the Limitation of Actions Act 20.Having reached the forgoing conclusion that his PO has failed the test of preliminary objections, this substantive question is rendered moot. Part Vii: Disposition 21.Wherefore this Court finds the 2nd Defendant/Objector’s PO without merit and dismisses it. Costs shall be in the cause. VIRTUALLY DELIVERED, SIGNED AND DATED IN ELC ELDORET THIS 13TH DAY OF JULY 2026…………….…………C.N. ONDIEKIJUDGEIn the presence of:Advocate for the Plaintiff/Respondent: Mr. NgarngarAdvocate for the 1st and 4th Defendants: Mr. Ng’eno for KoechAdvocate for the 2nd Defendant/Objector: Mr. Ndung’uAdvocate for the 3rd Defendant: Mr. Karanja5th Defendant: Did not enter appearanceCourt Assistant: Ms. Juma