https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3299

Kirui & another (Suing in their capacities as the personal representatives of Musa Kipkirui Chumo - Deceased) v Mbaka & 11 others (Environment and Land Case E001 of 2026) [2026] KEELC 3299 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3299 (KLR) Republic of Kenya In the Environment and Land Court at Bomet Environment and Land Case E001 of 2026 LA Omollo, J May 28, 2026 Between Robert Kiprono Kirui 1st Plaintiff Vincent Cheruiyot Kirui 2nd Plaintiff Suing in their capacities as the personal representatives of Musa Kipkirui Chumo - Deceased and Gideon Omare Mbaka 1st Defendant Vincent Chepkwony 2nd Defendant Peter Waweru Wanjiru 3rd Defendant Evans Kipkoech Korir 4th Defendant Tikswoods Company Limited 5th Defendant Joshua Mosoti Nyamara 6th Defendant Selina Chepngetich 7th Defendant The Chief Land Registrar 8th Defendant The Director of Survey 9th Defendant The Hon Attorney General 10th Defendant and Peter Kirui 1st Third party Andrew Birech 2nd Third party Ruling Introduction. 1.This ruling is in respect of the 2nd Third Party/Applicant’s Notice of Motion application dated 13th November, 2025 and the Preliminary Objection dated 20th November, 2025. 2.The Notice of Motion application dated 13th November, 2025 is expressed to be brought under Section 4 of the Limitation of Actions Act, Sections 3 & 3A of the Civil Procedure Act and Order 1 Rule 10(2) and Order 2 Rule 15(1) (a), (b), (c) & (d) of the Civil Procedure Rules. 3.The application seeks the following orders;a.That the name of the 2nd Third Party/Applicant be struck out from these proceedings.b.That the Third Party Notice dated 5th October, 2024 be struck out for disclosing no reasonable cause of action against the 2nd Third Party.c.That the claim against the 2nd Third Party is statute-barred under Section 4 of the Limitation of Actions Act.d.That the costs of the application and of the Third Party proceedings be awarded to the 2nd Third Party. 4.The application is based on the grounds on its face and the supporting affidavit of the 2nd Third Party/Applicant. 5.The preliminary Objection dated 20th November, 2025 is on the following grounds;a.The Third Party Notice dated 5th October, 2024 offends the provisions of Section 4(1) & (2) of the Limitation of Actions Act, Cap 22.b.The Third Party Notice is fatally defective and ought to be forthwith dismissed with costs to the 2nd Third Party. Factual Background . 6.The Plaintiffs/Respondents commenced the present proceedings vide the Plaint dated 12th April, 2023 where they seek the following prayers;a.A declaration that the sub-division of all that property known as LR No. Kericho/Manaret S.S/910 into LR No. Kericho Manaret S.S/1080 -1081, 1141-1142, 1171-1172, 1318-1319, 1392-1396, 1427-1429 resting (sic) with LR No’s Kericho/Manaret S.S/1433-1439, was a consequence of illegality, irregularity and/or fraud.b.An order directing the Land Registrar in custody of the registers in respect of the titles to the properties known as LR No. Kericho/Manaret S.S/910 into various portions that is, LR Kericho Manaret S.S/1080-1081, 1141-1142, 1171-1172, 1318-1319, 1392-1396, 1427-1429 resting (sic) with LR No’s Kericho/Manaret S.S/1433-1439, to forthwith cancel them and restore the register in respect of the parcel of land known as LR No. Kericho/Manaret S.S/910; in the manner it was, before its purported sub-division.c.That the Defendants are illegal occupants and/or trespassers on the deceased’s property known by reference as LR No. Kericho/Manaret S.S/910.d.A permanent injunction does issue restraining the Defendants, their agents and/or servants from any further trespass and/or interference with the quiet possession, use and enjoyment of the parcel of land comprised in LR No. Kericho/Manaret S.S/910 by the beneficiaries of the deceased’s estate.e.Costs of, and incidental to this suit. 7.The 8th, 9th and 10th Defendants/Respondents filed their Statement of Defence on 19th September, 2023 wherein they deny the averments in the Plaint and urge the Court to dismiss the Plaintiffs/Respondents suit with costs. 8.As at the time of writing of this ruling, the 1st to 7th Defendants/Respondents have not filed their Statements of Defence. 9.On 10th June, 2024, the 2nd Defendant/Respondent filed the Notice of Motion application dated 8th June, 2024 seeking that the 1st and 2nd Third Party be joined to the suit and on 3rd October, 2024, the said application was allowed. 10.The application under consideration came up for hearing on 9th December, 2025. The Court issued directions that the application be heard together with the Preliminary Objection dated 20th November, 2025 and further that they be heard by way of written submissions. 11.Counsel for the 1st, 3rd, 4th, 5th, 6th and 7th Defendants/Respondents and the Plaintiffs/Respondents stated that they will not be participating in the hearing of the application. 12.The matter was mentioned severally to confirm filing of submissions and was reserved for ruling on 17th March, 2026. The 2nd Third Party/Applicant’s Contention. 13.The 2nd Third Party/Applicant contends that he is an Advocate of the High Court of Kenya practicing in the name and style of Birech, Ngetich & Associates Advocates. 14.He also contends that the 2nd Defendant/Respondent and the 1st Third Party/Respondent instructed him to draft an agreement for sale of a 0.1 acre portion of land parcel No. Kericho/Manaret/S.S/1318. 15.He further contends that the 1st Third Party/Respondent was accompanied by nine of his family members who included their mother one Rael Chepkirui Chumo. 16.It is his contention that they informed him that they were selling the said portion of land in order to get money to get treatment for their father who was at that time paralyzed. 17.It is also his contention that at the time of the sale, both the 2nd Defendant/Respondent and the 1st Third Party/Respondent were aware of the ownership status of the suit parcel of land. 18.It is further his contention that he drafted the said land sale agreement, witnessed it and was paid Kshs. 8,000/=. 19.He contends that on 22nd May, 2018, the parties went back to his office and instructed him to draft a land sale agreement for the sale of an additional portion of land parcel No. Kericho/Manaret/S.S/1318 measuring 1.1 acres. 20.He also contends that the 1st Third Party/Respondent was selling the said portion of land on behalf of his now deceased father and was accompanied by seven family members and adds that the 2nd Defendant/Respondent was represented by his brother one Kipkoech Geoffrey Chepkwony. 21.He further contends that all the parties were aware of the status of the ownership of the said parcel of land and that he drafted the land sale agreement. 22.It is his contention that apart from drafting and witnessing both agreements, he was never given any other instructions. 23.It is also his contention that he did not give any advice as to the validity of the sale and/or transfer of the suit parcel of land and neither did he transfer the said properties to the 2nd Defendant/Respondent. 24.It is further his contention that he has perused the document filed by the 2nd Defendant/Respondent titled “Facilitator Agreement” and goes on to state that he was not privy to the said agreement. 25.He contends that he does not know the “facilitator” one Jackson Kimutai Ngetich and neither did he engage him to represent him in any transaction. 26.He also contends that he has been improperly joined to the present proceedings. 27.He further contends that the Third Party Notice discloses no reasonable cause of action against him. 28.It is his contention that the allegations against him are frivolous, vexatious and an abuse of the Court process. 29.He reiterates that his instructions were limited to drafting the sale agreement and he was not retained to conduct any due diligence, investigate the title and/or process the transfer. 30.It is also his contention that he is advised by counsel that the alleged cause of action accrued in 2018 and it is now statute barred under Section 4(1) & (2) of the Limitation of Actions Act. 31.It is further his contention that the allegations set out in the Third Party Notice are outside the scope of his retainer and they disclose no reasonable cause of action. 32.He ends his deposition by stating that it is in the interest of justice that his name be struck out from the present proceedings. The 2nd Defendant/Respondent’s Response. 33.In response to the 2nd Third Party/Applicant’s Notice of Motion application, the 2nd Defendant/Respondent filed a Replying Affidavit sworn on 27th January, 2026. 34.He deposes that the Plaintiffs/Respondents clearly particularized the alleged acts of fraud at paragraph 30 of the Plaint and stated that they discovered the alleged acts of fraud on 11th October, 2022 and 17th October, 2022. 35.He also deposes that the Plaintiffs/Respondents aver in the Plaint, that they discovered the alleged illegal transfer of the suit parcel of land when they conducted a search at the Lands Registry right before they commenced succession proceedings and goes on to state that the Plaintiffs/Respondents later filed Kericho HC Succession Cause No. 3 of 2020. 36.He further deposes that it was after he was served with the pleadings filed herein that he learnt of the allegations of fraud over his ownership of land parcel No. Kericho/Manaret SS/1318. 37.It is his deposition that he filed his Statement of Defence and then took out Third Party Proceedings. 38.It is also his deposition that the 1st Third Party/Respondent and the 2nd Third Party/Respondent were served but they failed to file their Statements of Defence and goes on to state that they are now deemed to have admitted liability under Order 1 Rule 17 of the Civil Procedure Rules. 39.It is further his deposition that since the suit is premised on fraudulent and illegal transfer of the suit parcel of land, time only begins to run from the date of discovery of fraud and adds that Section 4(1) and (2) of the Limitation of Actions Act relied on by the 2nd Third Party/Applicant is not applicable. 40.He deposes that the 2nd Third Party/Applicant admits that he (2nd Defendant/Respondent) instructed him to draft land sale agreements for the purchase of one acre and 1.1 acre portions of land parcel No. Kericho/Manaret SS/1318. 41.He also deposes that it was incumbent upon the 2nd Third Party/Applicant to ensure that the agreement was done in compliance with the law. 42.He further deposes that the 2nd Third Party/Applicant ought to have advised him on the need for the person signing on behalf of the owner to have a registered power of attorney in order to pass a valid title to him. 43.It is his deposition that he did not tell the 2nd Third Party/Applicant not to conduct due diligence on the property. 44.It is also his deposition that he sought the services of the 2nd Third Party/Applicant who had the obligation to ensure that that the representative of the deceased had the required power of attorney to sell the property and/or sign the sale agreement on behalf of the deceased. He goes on to state that that is why he paid the 2nd Third Party/Applicant the legal fees that they agreed on. 45.It is further his deposition that after signing the agreements, he paid the purchase price and took possession of the land and goes on to state that the 2nd Third Party/Applicant with the assistance of another person, assisted him to get a title deed on 28th June, 2018. 46.He deposes that the issue as to whether the 2nd Third Party/Applicant was a facilitator is an issue to be dealt with at the trial. 47.He also deposes that in the unlikely event that the title is revoked, he stands to lose a lot as the market value of the suit parcel of land is Kshs. 12,000,000/=. 48.He further deposes that he has brought on board the seller, the registered owner’s representative and the Third Parties for indemnity, compensation and a refund of the purchase price in the unlikely event that adverse orders are issued against him. 49.It is his deposition that if the Court discharges the 2nd Third Party/Applicant, he will be left exposed and a travesty of justice will be occasioned against him. 50.He ends his deposition by stating that it is in the interest of justice that the 2nd Third Party/Applicant alongside the 1st Third Party/Respondent be retained in order to indemnify him in the event an adverse decision is made.The 2nd Third Party/Applicant’s Response to the 2nd Defendant/Respondent’s Replying Affidavit. 51.The 2nd Third Party/Applicant filed a Further Affidavit sworn on 20th February, 2026. 52.He deposes that the 2nd Defendant/Respondent’s Third Party claim against him is premised on alleged professional negligence in his capacity as an Advocate of the High Court of Kenya. 53.He also deposes that the 2nd Defendant/Respondent contends that he failed to conduct due diligence, failed to verify the authority to sell and ensure compliance with the legal requirements. 54.He further deposes that he is advised by his advocates on record that claims founded on professional negligence arising from advocate-client relationships constitute ordinary civil claims. 55.It is his deposition that such claims do not fall within the jurisdiction of the Environment and Land Court Act as provided for under Article 162 (2)(b) of the Constitution of Kenya. He goes on to state that the jurisdiction of this Court is limited to disputes relating to the environment, use, occupation and title to land. 56.It is also his deposition that Section 13 of the Environment and Land Court Act limits the jurisdiction of this Court to disputes relating to land administration and use, environmental planning, public and community land and instruments conferring interest in land. 57.It is further his deposition that the Third Party Notice filed in the present suit does not seek determination of issues on ownership, use, occupation and title to land. 58.He deposes that the 2nd Defendant/Respondent is seeking indemnity for alleged professional negligence which issue the Environment and Land Court does not have jurisdiction to hear and determine. 59.He also deposes that the mere fact that the underlying transaction involves land does not convert a professional negligence claim into a land dispute. 60.He further deposes that if this Court entertains negligence claims against advocates simply because the transaction touches on land, it will be enlarging its jurisdiction beyond the limits prescribed by law. 61.He reiterates the averments in the affidavit in support of the application and ends his deposition by stating that it is in the interest of justice that the Third Party Notice be struck out for want of jurisdiction and for being time barred. Issues for Determination. 62.The 2nd Third Party/Applicant filed two sets of submissions; one on the application under consideration and another on the Preliminary Objection. Both submissions were filed on 24th February, 2026. The 2nd Defendant/Respondent filed his submissions on 6th March, 2026. 63.In the submissions on the application under consideration, the 2nd Third Party/Applicant submits on the following issues;a.Whether the 2nd Third Party/Applicant is properly joined to the present proceedings.b.Whether the Third Party Notice against the 2nd Third Party discloses a reasonable cause of action against him.c.Whether the Third Party claim is statute barred under Section 4 of the Limitation of Actions Act.d.Whether the Environment and Land Court has jurisdiction to determine an advocate professional negligence/indemnity claim against the 2nd Third Party. 64.On the first issue, the 2nd Third Party/Applicant relies on Order 1 Rule 10(2) of the Civil Procedure Rules, the judicial decisions of Florence Nafula Ayodi & 5 Others vs Jonathan Ayodi Ligure vs John Tabalya & others (sic) [2021] KEELC 1476 (KLR), Thome Farmers Company (No.1) Limited vs Nanjero & 2 Others [2025] KEHC 11488 and while reiterating the averments in the further affidavit, submits that he is not a necessary party to the present proceedings and his joinder was improper. 65.On the second issue, the 2nd Third Party/Applicant relies on Order 2 Rule 15 of the Civil Procedure Rules, the judicial decision of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR and while reiterating the averments in the affidavit in support of the application, submits that the Third Party Notice fails to plead with precision the scope of the retainer, the specific duty breached and a basis for indemnity. 66.The 2nd Third Party/Applicant therefore seeks that the Third Party Notice be struck out. 67.On the third issue, the 2nd Third Party/Applicant reiterates that the cause of action arose in the year 2018 and therefore the 2nd Defendant/Respondent’s claim is statute barred. He relies on Section 4 of the Limitation of Actions Act in support of his submissions. 68.On the fourth issue, the 2nd Third Party/Applicant relies on the judicial decisions of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) and reiterates that this Court does not have jurisdiction to hear and determine a professional negligence dispute against an advocate. 69.The 2nd Third Party/Applicant concludes his submissions by urging the Court to allow his application as prayed. 70.With regard to the preliminary objection, the 2nd Third Party/Applicant submits on the following issues;a.Whether the preliminary objection raises a proper point of law.b.What is the nature of claim against the 2nd Third Party and whether the same is statute barred.c.Whether this Honourable Court has jurisdiction to entertain a statute barred claim. 71.On the first issue, the 2nd Third Party/Applicant relies on the judicial decision of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 and submits that the preliminary objection dated 20th November, 2025 raises pure points of law. 72.The 2nd Third Party/Applicant also submits that it is not in dispute that the land sale agreements that the 2nd Defendant/Respondent is relying on were executed in March and May, 2018. 73.The 2nd Third Party/Applicant further submits that the 2nd Defendant/Respondent was issued with a title deed issued on 28th June, 2018. 74.It is the 2nd Third Party/Applicant’s submissions that the Third Party Notice is dated 5th October, 2024. 75.It is also the 2nd Third Party/Applicant’s submissions that the issue whether six years lapsed is a matter of computation and statutory interpretation. 76.It is further the 2nd Third Party/Applicant’s submissions that the question whether a suit is statute barred is a pure point of law which requires the sole consideration of Section 4 of the Limitation of Actions Act. 77.On the second issue, the 2nd Third Party/Applicant reiterates that the 2nd Defendant/Respondent contention in the Third Party Notice is hinged on claims of professional negligence and breach of retainer. 78.The 2nd Third Party/Applicant relies on Sections 4(1)(a) and (2) of the Limitation of Actions Act, the judicial decisions of Josephat Ndirangu v Henkel Chemicals (EA) Ltd [2013] KEELRC 890 (KLR), Kenya Ports Authority v Timberland (K) Ltd [2017] eKLR and submits that the alleged acts occurred in 2018. 79.It is the 2nd Third Party/Applicant’s submissions that if the claim is framed as a tort, then the limitation period expired in June, 2021. 80.It is also the 2nd Third Party/Applicant’s submissions that if the claim is framed as a contractual dispute, then the limitation period expired in June, 2024. 81.It is further the 2nd Third Party/Applicant’s submissions that since the Third Party Notice was filed in October, 2024, it was filed outside of the statutory period. 82.On the third issue, the 2nd Third Party/Applicant relies on the judicial decisions of Owners of Motor vessel “Lilian S” vs Caltex Oil (Kenya) Ltd [1989] eKLR, Samuel Kamau Macharia vs Kenya Commercial Bank [2012] eKLR and reiterates that this Court does not have jurisdiction to hear and determine the Third Party notice. 83.The 2nd Third Party/Applicant concludes his submissions by urging the Court to allow the preliminary objection as prayed. 84.The 2nd Defendant/Respondent submits on the following issues;a.Whether the Third Party proceedings are statute barred.b.Whether this Honourable Court lacks jurisdiction to hand the dispute.c.Who shall bear the costs. 85.On the first issue, the 2nd Defendant/Respondent relies on Section 4(1) of the Limitation of Actions Act and submits that his claim against the 2nd Third Party/Applicant is not founded on the 2018 land sale agreement. 86.The 2nd Defendant/Respondent also submits that the cause of action against the 2nd Third Party/Applicant crystallized when he (2nd Defendant/Respondent) was served with the pleadings filed herein in the year 2024. 87.The 2nd Defendant/Respondent further submits that it was after he was served that the exposure to loss became real and immediate. 88.It is the 2nd Defendant/Respondent’s submissions that a claim for indemnity accrues when liability is asserted and/or established. 89.It is also the 2nd Defendant/Respondent’s submissions that the suit is premised on alleged fraudulent and illegal transfer of property and time only starts to run from the date of discovery of fraud. 90.It is the further the 2nd Defendant/Respondent’s submissions that Section 4(1) and (2) of the Limitation of Actions Act is not applicable. 91.On the second issue, the 2nd Defendant/Respondent submits that the 2nd Third Party/Applicant is artificially isolating his professional role from the transaction in dispute. 92.The 2nd Defendant/Respondent relies on Article 162(2)(b) of the Constitution, Section 13 of the Environment and Land Court Act and submits that the 2nd Third Party/Applicant drafted the land sale agreement and transfer documents that are under challenge. 93.The 2nd Defendant/Respondent also submits that the 2nd Third Party/Applicant cannot retreat behind professional negligence the moment fraud is alleged in order to evade this Court’s jurisdiction. 94.The 2nd Defendant/Respondent reiterates the averments in his Replying Affidavit and submits that the 2nd Third Party/Applicant’s conduct cannot be severed from the land dispute. He relies on the judicial decision of Suzanne Achieng Butler & 4 Others vs Redhill Heights Investment Limited & another (citation not given) in support of his submissions. 95.The 2nd Defendant/Respondent also relies on Order 1 Rule 15 of the Civil Procedure Rules and submits that the Civil Procedure Rules do not exclude legal experts from indemnifying Defendants from claims arising from transactions that they midwifed. 96.It is the 2nd Defendant/Respondent’s submissions that the Disciplinary Tribunal hears disputes over allegations of professional misconduct. 97.It is also the 2nd Defendant/Respondent’s submissions that professional negligence does not necessarily amount to misconduct which falls under the purview of the Disciplinary Tribunal. 98.It is further his submissions that he is not seeking that the 2nd Third Party/Applicant be punished for misconduct but he is only seeking for an indemnity arising from negligence. 99.The 2nd Defendant/Respondent relies on the judicial decisions of Gabriel Mugai Njiri vs Wanga Robert Hawi t/a R.H Wanga & Co. Advocates & R. H wanga & Co. Advocates [2018]eKLR, National Bank of Kenya Ltd vs E. Muriu Kamau & Njoroge Nani and Mungai T/A Muriu Mungai & Co. Advocates HCC No. 539 of 2004 in support of his submissions. 100.The 2nd Defendant/Respondent submits that if the Court finds that the transfer was fraudulent, then the role of the advocate who processed the instruments becomes relevant and liable to indemnify him. 101.The 2nd Defendant/Respondent also submits that if the 2nd Third Party/Applicant is removed from the proceedings, he will be left without any protection in the event an adverse decision is made against him. 102.The 2nd Defendant/Respondent further submits that a Court’s jurisdiction is determined by the nature of the principal dispute and not how a Third Party characterizes its defence. 103.It is the 2nd Defendant/Respondent’s submissions that the 2nd Third Party/Applicant’s role in the present proceedings is necessary for the Court to effectually determine the disputes herein. 104.The 2nd Defendant/Respondent reiterates the averments in the replying affidavit and urges the Court to dismiss the 2nd Third Party/Applicant’s Preliminary Objection and application. Analysis and Determination. 105.I have considered the 2nd Third Party/Applicant’s application and preliminary objection, the response to the application, the Further Affidavit and the rival submissions. It is my view that the following issues arise for determination;a.Whether the Preliminary Objection dated 20th November, 2025 has merit.b.Whether the Notice of Motion application dated 13th November, 2025 has merit.c.Who should bear costs of the preliminary objection and application. A. Whether the Preliminary Objection dated 20th November, 2025 has merit. 106.The grounds on the face of the Preliminary Objection dated 20th November, 2025 have been set out in the following paragraphs but I will nonetheless replicate them as hereunder for ease of reference;a.The Third Party Notice dated 5th October, 2024 offends the provisions of Section 4(1) & (2) of the Limitation of Actions Act, Cap 22.b.The Third Party Notice is fatally defective and ought to be forthwith dismissed with costs to the 2nd Third Party. 107.Essentially, the 2nd Third Party/Applicant’s Preliminary Objection is on the ground that the Third Party Notice dated 5th October, 2024 is statute barred. 108.The judicial decision of Ushago Diani Investment Limited v Abdulwahab (Environment & Land Case 12 of 2023) [2023] KEELC 20213 (KLR) (27 September 2023) (Ruling) cited with approval Oraro v Mbaja [2005] eKLR 141 where the Court held as follows on the nature of preliminary objections;“A preliminary objection is now well identified as and declared to be 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. Any assertion which claims to be a preliminary objection and yet it bears 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. Where a Court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”(Emphasis mine) 109.A preliminary objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained. Further, a preliminary objection must stem from the proceedings and raise pure points of law and should not deal with disputed facts nor should it derive its foundation from factual information. 110.The 2nd Third Party/Applicant submits that in the Third Party Notice, the 2nd Defendant/Respondent alleges professional negligence and breach of retainer. 111.The 2nd Third Party/Applicant also submits that the said acts of professional negligence and retainer happened in the year 2018. 112.The 2nd Third Party/Applicant further submits that if the claim is framed as a tort, then the limitation period ended in June 2021 and if the claim is framed as a contractual dispute, then the limitation period expired in June, 2024. 113.It is the 2nd Third Party/Applicant’s submissions that the Third Party Notice was filed in October, 2024 and is, therefore, statute barred. 114.On the other hand, the 2nd Defendant/Respondent’s submits that his claim against the 2nd Third Party/Applicant is not founded on the 2018 land sale agreement. 115.It is also the 2nd Defendant/Respondent’s submissions that he was served with the documents filed in the present suit in the year 2024 when he discovered the alleged fraudulent acts in the registration of the suit parcel of land. 116.It is further the 2nd Defendant/Respondent’s submissions that in a claim of fraud, time begins to run from the date of discovery of the said fraud and therefore Sections 4(1) and (2) of the Limitation of Actions Act is not applicable. 117.Section 4(1) and (2) of the Limitation of Actions Act provides 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.(2)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:Provided that an action for libel or slander may not be brought after the end of twelve months from such date.” 118.In Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi [2019] eKLR the Court held as follows;“ 13.The law as I understand it is that the defence of limitation of time is a matter for determination at the trial; it cannot be dealt with in a summary manner or at preliminary stage or as a preliminary objection. The Court should formulate limitation as one of the issues for determination and decide it on evidence adduced at the trial.On this see the case of Oruta & Another vs. Nyamato [1998] KLR 590, where the Court held that limitation of action:-“…could only be queried at the trial but not by…a preliminary objection…The appellant could raise the objection at the trial and the trial Judge would have to deal with the matter on the evidence to be adduced at the trial’’ 14.See also the case of Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997, where the Court quoted with approval the words of Gachuhi, J.A., the leading Judge in the Oruta case (ibid) that:“It will be up to the Judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…” (Emphasis mine) 119.As was held in the above cited judicial decision, the defence of limitation of time can only be determined at the trial and cannot be dealt with as a preliminary objection. This is because the determination of the issue of limitation of time requires the Court to ascertain facts which can only be done by interrogating evidence. 120.That being the case, the issue whether or ````not the Third Party Notice is statute barred will be best addressed during the hearing. B. Whether the Notice of Motion application dated 13th November, 2025 has merit. 121.The prayers sought in the application dated 13th November, 2025 have been set out in the preceding paragraphs but I will replicate them as hereunder for ease of reference; 1.That the name of the 2nd Third Party/Applicant be struck out from these proceedings. 2.That the Third Party Notice dated 5th October, 2024 be struck out for disclosing no reasonable cause of action against the 2nd Third Party. 3.That the claim against the 2nd Third Party is statute-barred under Section 4 of the Limitation of Actions Act. 4.That the costs of the application and of the Third Party proceedings be awarded to the 2nd Third Party. 122.Prayer (3) of the application seeks that the Court makes a finding that the claim against the 2nd Third Party/Applicant is statute barred. 123.I have addressed the said issue under issue (A) above and found that the question whether or not the claim against the 2nd Third Party is statute barred, will best addressed during the hearing. 124.Under prayer (1) and (2) of the application, the 2nd Third Party/Applicant seeks that his name be struck out from the proceedings and the Third Party Notice dated 5th October, 2024 be struck out for not disclosing a reasonable cause of action against him. 125.The 2nd Third Party/Applicant contends that he was only instructed to draft the land sale agreements for the sale of portions of land parcel No. Kericho/Manaret/SS/1318 and he did not offer any advisory services as to the validity of the sale and/or transfer of the suit said parcel of land. 126.The 2nd Third Party/Applicant also contends that his instructions were limited to drafting the land sale agreements and he was not retained to conduct due diligence, investigate the title or process the transfer. 127.The 2nd Third Party/Applicant further contends that the allegations set out in the Third Party Notice are outside of the scope of his retainer and it therefore discloses no reasonable cause of action against him. 128.The 2nd Defendant/Respondent in response contends that the 2nd Third Party/Applicant drafted land sale agreements for the purchase of portions of land parcel No. Kericho/Manaret SS/1318. 129.The 2nd Defendant/Respondent also contends that the 2nd Third Party/Applicant ought to have ensured that the agreements that were drafted were in compliance with the law. 130.The 2nd Defendant/Respondent further contends that he has brought the Third Parties on board so that he can be indemnified and compensated in the event adverse orders are issued against him. 131.A perusal of the Court record shows that the 2nd Defendant/Respondent filed a Third Party Notice dated 5th October, 2024 wherein he seeks the following reliefs; 1.Contribution in full (or to such extent as the Honourable Court may deem fit), either directly or vicariously in respect of the Plaintiffs’ claim set out in the Plaint annexed hereto. 2.Indemnity and a refund of the Purchase Price to the 2nd Defendant, jointly and severally, of the current open market value of Kenya Shillings Twelve Million (KShs 12,000,000) alongside such sums that the 2nd Defendant has spent, or any payments made in relation to Kericho/Manaret/S.S/1318 and costs of defense of the suit in the event that adverse orders are issued against the 2nd Defendant’s title. 3.Costs of the suit. 132.In the judicial decision of Family Bank Limited v Mutisya & Another (Civil Appeal E076 of 2021) [2024] KEHC 5740 (KLR) (13 May 2024) (Judgment) the Court held as follows;“In law, a third Party is enjoined in a suit at the instance of the Defendant and through the set procedure under (Order 1 rule 15 - 22 of the Civil Procedure Rules. And, liability between the Defendant and the third Party is determined between the Defendant and the third Party, but of course, after the Court is satisfied that there is a proper question to be tried as to liability of the third Party and the Defendant, and has given directions under Order 1 Rule 22 of the Civil Procedure Rules.”[Emphasis mine] 133.In the above cited judicial decision, the Court held that a Third Party is joined to the suit after the Court is satisfied that there is a proper question to be tried as to liability of the Third Party and the Defendant. 134.As stated, on 3rd October, 2024, the 2nd Third Party/Applicant was joined to the suit. 135.The 2nd Third Party/Applicant contends that the Third Party Notice does not disclose a reasonable cause of action. It is my view that if the 2nd Third Party/Applicant has any misgivings on his joinder then he should raise them during the hearing. 136.Before penning off, I note that the parties have extensively submitted on whether this Court has jurisdiction. 137.The 2nd Third Party/Applicant contends that the issues raised in the Third Party Notice are based on alleged professional negligence which issue the Environment and Land Court does not have jurisdiction to hear and determine. 138.The 2nd Defendant/Respondent contends that the matter filed before this Court is a land dispute and it cannot be characterized as a purely professional negligence claim. 139.It is my view that the 2nd Third Party/Applicant is inviting the Court to look at the merits or otherwise of the Third Party Notice which the Court cannot determine at this preliminary stage. 140.It is my view that the issue whether or not the Third Party Notice raises issues of land and/or professional negligence will be best addressed during the hearing. C. Who should bear costs of the preliminary objection and application. 141.The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 142.A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 143.Taking the foregoing into consideration, I find and order as follows;a.The Preliminary Objection dated 20th November, 2025 lacks merit and it is hereby dismissed with costs.b.The Notice of Motion application dated 13th November, 2025 lacks merit and it is hereby dismissed with costs. 144.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 28TH DAY OF MAY, 2026.L. A. OMOLLOJUDGE.In the presence of: -Mr. Meli for Mr. Onyango for the 2nd Third Party/Applicant.Miss Chepkemoi for 8th, 9th and 10thDefendants/Respondents.Mr. Kigen for the 2nd Defendant.Court Assistant: Mr. Joseph Makori