https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4869

# REPUBLIC OF KENYA **IN THE ENVIRONMENT AND LAND COURT** **AT KAJIADO ELCC 210 OF 2017** **LOCAL AUTHORITIES PROVIDENT FUND (LAPFUND) PLAINTIFF** **VS** **EMILY KATITO KASIRIMO, JOSPHAT MUYAA KASIRIMO** **& DAVID KIMITI KASIRIMO (Sued as the Legal Administrators of the Estate of DANIEL KASIRIMO OLE** **MUYAA-Deceased) 1ST DEFENDANT** **TERRY CHEBET MAINA 2ND DEFENDANT** **MARY JERUTO KIPTANUI (Sued as the Legal Administrators** **of the Estate of ABRAHAM KIPSANG KIPTANUI-Deceased) 3RD DEFENDANT** ***CONSOLIDATED WITH ELCC/50/2020*** **LOCAL AUTHORITIES PROVIDENT FUND (LAPFUND)… PLAINTIFF** **VS** **EMILY KATITO KASIRIMO… 1ST DEFENDANT** **SAMUEL SONTO OLE MUYAA 2ND DEFENDANT** **TAPATAI OLE SELELO LEMANGI… 3RD DEFENDANT** **RULING** ***(In respect the Plaintiff of the Preliminary Objection dated 2nd October 2025)*** **Introduction** 1. Before this court for determination is the Plaintiff’s Notice of Preliminary Objection dated 2nd October, 2025. Through the objection, the court has been implored to strike out the 1st Defendant’s counterclaim with costs due to the following reasons: 1. ***The Counterclaim is time-barred under Section 7 of the Limitation of Actions Act, Cap 22, Laws of Kenya, the alleged cause of action having arisen in or about 1987*** ***when the 1st Defendant purportedly sold the suit property, and/or at the latest in 2010 when the 1st Defendant lodged a claim before the Kajiado District Land Disputes Tribunal;*** * 1. ***The Counterclaim is res judicata within the meaning of Section 7 of the Civil Procedure Act, Cap 21, Laws of Kenya, the same issues having been heard and conclusively determined in Machakos Judicial Review Cause No. 258 of 2010 – Republic v. The Kajiado North Land Disputes Tribunal & 3 Others & Daniel Kasirimo Ole Muyaa, Ex parte Terry C. Maina, wherein the Honorable Court quashed the Tribunal’s award and reaffirmed the absolute title of the 2nd Defendant;*** 2. ***The Counterclaim is further barred by the ruling of the Milimani Environment and Land Court in ELC Misc. Suit No. 40 of 2014– Justice J.M. Mutungi’s ruling of 11th March 2015, which again upheld the validity of the 2nd Defendant’s title TO KAJIADO/KAPUTIEI NORTH/36933 and 36934;*** 3. ***The Counterclaim amounts to a collateral attack on judgments of superior courts of competent jurisdiction and is therefore an abuse of the process of this honorable Court; and*** 4. ***The Counterclaim discloses no reasonable cause of action in law against the Plaintiff, who is the registered proprietor of the suit property, and is therefore frivolous, vexatious and otherwise an abuse of the court process.*** 1. When the preliminary objection came up for directions on 19 February, 2026 learned Counsel, **Mr. Elias Masika** appearing on behalf of the 2nd and 3rd Defendants stated that he was in support of the objection. # Court’s directions 1. The preliminary objection was canvassed through written submission. In support of the objection, the Plaintiff through its submissions dated 18th day of May 2026 states that it became the registered proprietor of KAJIADO/KAPUTIEI NORTH/52489, *the suit property herein*, upon acquiring it for value consideration on 6th February, 2015 from the 2nd Defendant. 2. According to the Plaintiff, the dispute over the suit property traces its origin to the property known as Kajiado/Kaputiei North/1020, which the deceased Daniel Kasirimo Ole Muyaa alleged to have sold to the 3rd Defendant, Abraham Kipsang Kiptanui in or about 1987. The 2nd Defendant subsequently acquired interests in the property and subdivided the property into two parcels, namely Kajiado/Kaputiei North/36933 and 36934, which were later amalgamated and further subdivided to create Kajiado/Kaputiei North/52489, now registered in the Plaintiff’s name. 3. The Plaintiff asserts that the legality of the transfer and ownership of the suit property has been the subject of earlier litigation in others for a. It is argues that the 1st Defendant’s counterclaim is identical to the preceding lawsuit for it challenges the Plaintiff’s and 2nd Defendant’s title to the suit property. 4. While making reference to ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd*** ***(1969) EA 696; Synergy Industrial Credit Ltd v Tron Enterprises Ltd & 2 others [2025] KEHC*** ***4610***; and ***Mbaruk & another (Suing Through His Brother and Next Friend Khamis Bin*** ***Mbaruk) v Omar (Sued in Her Capacity and as the Legal Representative of the Estate of Ali*** ***Ahmed Amir – Deceased) (ELC 82 of 2019) [2025] KEELC 454 (12 February 2025) (Ruling***), it is maintained that the objection has met the required threshold because it raises pure points of law. 1. Counsel argues that the 1st Defendant’s counterclaim is irredeemably statute barred as the alleged cause of action arose in or about 1987 when the 1st Defendant purportedly sold the suit property and, at the latest, in 2010 when the 1st Defendant lodged a claim before the Kajiado District Land Disputes Tribunal. The Counterclaim was filed on 15 May 2025, approximately thirty-eight years after the alleged cause of action accrued and fifteen years after the 1st Defendant’s own acknowledgment of the dispute in 2010. It is submitted that he cannot invoke Section 26 of Limitation of Actions Act (Cap. 22) to defeat limitation of action by claiming that his lawsuit is purportedly founded on fraudulent transfer and subdivision of the suit property. 1. Regarding the issue of *res judicata*, it is stated that the issues which the 1st Defendant seeks to relitigate were conclusively determined against him and his estate after the Tribunal award was quashed by court in *Judicial Review Cause No. 258 of 2010* and through a ruling delivered on 12 March 2015 in *Terry C. Maina v District Land Registrar, Kajiado [2015] KEHC 7120 (KLR)* which upheld the validity of the 2nd Defendant’s title for KAJIADO/KAPUTIEI NORTH/36933 and 36934 titles. 1. Considering that two courts of competent jurisdiction conclusively dealt with the issue of impugned titles, the Plaintiff submits that the 1st Defendant ought to have pursued review or appeal if he was dissatisfied with the decision rather than relitigate the same issues yet again. This approach undermines finality of litigation and brings disrepute to the administration of justice. 2. While imploring the court to allow the objection as prayed, it is insisted that the Plaintiff and the 2nd Defendant titles were upheld in *Judicial Review Cause No. 258 of 2010* and *ELC Misc. Suit No. 40 of 2014.* 3. The 1st Defendant through the submissions dated 16 April, 2026 urges the court to dismiss the preliminary objection arguing that it is legally incompetent for failure to meet the threshold set out in ***Mukisa Biscuit*** (**supra**). According to the 1st Defendant, the objection invites the court to determine contested factual issues which require interrogation. Further, for a determination to be made on whether the suit is *res judicata*, it cannot be done at this stage, the court will need to examine whether the issues raised in the counterclaim are identical to the pleadings and the judgments of earlier cases. 1. Reference is made to ***Arthi Highway Developers Limited v West End Butchery Limited & 6*** ***others [2015] KECA 816 (KLR)***; ***Funzi Island Development Limited & 2 others v County*** ***Council of Kwale & 2 others [2014] KECA 882 (KLR)***; and ***Republic v Land Registrar Taita*** ***Taveta District & another [2015] KEHC 6178 (KLR)*** to emphasize that fraud related land disputes cannot be disposed of through preliminary objections without evidentiary inquiry. Considering that the 1st Defendant’s counterclaim raises serious triable issues related to fraud and illegal acquisition of the suit property, the court is beseeched to take into consideration the caution spelt out in ***DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR***) regarding to striking out of pleadings while making its findings. In concluding, it is emphasized that in the interest of justice, fairness, public interested and justice the proceedings must be allowed to continue. # Issues for determination 1. In my respectful view, the issues that arise for determination are: 2. ***Whether the Notice of Preliminary Objection raises pure points of law capable of determination as a preliminary objection; and*** 3. ***If so, whether the Plaintiff's suit is statute-barred under the Limitation of Actions Act.*** 4. The law regarding what constitutes a proper preliminary objection is now firmly settled. The locus classicus remains ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969]*** ***EA 696***, where Law JA stated: ***"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 A preliminary objection is in the nature of what used to be a*** ***demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*** 1. The Supreme Court of Kenya reaffirmed these principles in ***Independent Electoral and*** ***Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR****,* where it observed that a preliminary objection serves the purpose of saving judicial time by disposing of matters that can be determined purely on questions of law without the necessity of receiving evidence. 1. The Court in ***Oraro v Mbaja [2005] 1 KLR 141*** cautioned against expanding the scope of preliminary objections into contested factual disputes. Ojwang J (as he then was) stated: ***"A preliminary objection correctly understood 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 processes of evidence."*** 1. One of the prominent grounds in support of the preliminary objection is that the counter-claim is res judicata in view of the determinations in Machakos Judicial Review Cause No. 258 of 2010 – Republic vs. The Kajiado North Land Disputes Tribunal & 3 Others & Daniel Kasirimo Ole Muyaa, Ex parte Terry C. Maina. It is further alleged that the Counterclaim is barred by the ruling of the Milimani Environment and Land Court in ELC Misc. Suit No. 40 of 2014. The Objectors affirm that the counterclaim amounts to a collateral attack on judgments of superior courts of competent jurisdiction and is therefore an abuse of the process of this Court. 2. Time and again this court and other superior courts have been categorical that issues of res judicata, duplicity of suits and suits having been spent, will require probing of evidence. They are incapable of being handled as preliminary objections because of the limited scope of the jurisdiction on preliminary objections. 3. Accordingly, I find that, save for the question of limitation viewed strictly from the pleadings, the objection substantially depends upon contested facts and therefore falls outside the proper scope of a preliminary objection. 4. On the question of limitation, the Objector argues that the Counterclaim is time-barred under Section 7 of the Limitation of Actions Act, Cap 22, Laws of Kenya, the alleged cause of action having arisen in or about 1987 when the 1st Defendant purportedly sold the suit property, and/or at the latest in 2010 when the 1st Defendant lodged a claim before the Kajiado District Land Disputes Tribunal. 5. Section 7 of the Limitation of Actions Act provides: *"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."* 1. Ordinarily, actions for recovery of land are therefore subject to a limitation period of twelve years. However, the 1st Defendant’s counterclaim is not merely a claim for recovery of land. The gravamen of the suit is that the suit property was fraudulently transferred from the deceased. 2. Section 26 of the Limitation of Actions Act provides that: *"Where, in the case of an action for which a period of limitation is prescribed, either—(a) the action is based upon the fraud of the defendant or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief* *from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it."* 1. This provision postpones the commencement of the limitation period where fraud is pleaded. The Court of Appeal in ***Divecon Ltd v Samani [1995-1998] 1 EA 48,*** recognized that limitation is a substantive question governed strictly by statute, while acknowledging that where Parliament has expressly provided exceptions such as those under Section 26, courts must give effect to those statutory exceptions. 1. Likewise, in ***Mea Ltd v Commissioner of Lands & Another [2016] eKLR***, the Court observed that where fraud is pleaded, the question of when the fraud was discovered is generally a matter requiring evidence. 1. This court therefore finds that the preliminary objection dated 2nd October, 2025 is unmerited. It is hereby struck out with costs. The court directs that the matter be set down for hearing forthwith. Ordered accordingly. # Dated, Signed and Delivered at Kajiado Virtually this 24th Day of July 2026. **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Gichuki for the 1st Defendant Ms. Katana alongside Ms. Koech for the Plaintiff N/A by the 2nd and 3rd Defendants Court Assistant: Alex # M.D. MWANGI **JUDGE**