https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3203

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT OF KENYA** **AT NAIROBI** **ELC CIVIL APPEAL NO. E069 OF 2022** **MARY NJERI WAWERU ……………………………………..……..APPELLANT** **VERSUS** **KELVIN KINYANJUI WAWERU ……………………………1ST RESPONDENT** **SHEILA WAIRIMU MWARANGU ………………………..2ND RESPONDENT** **(Being an Appeal from the whole of the Ruling of the Honourable Kagoni E.M delivered on 25th May, 2022 at the Nairobi Chief Magistrates Court in Civil Suit No. E320 of 2021)** **JUDGMENT** 1. This is an appeal from the entire Ruling from Milimani Chief Magistrate’s Court delivered on the 22nd day of July 2022 in Civil Suit No. E320 of 2021. By that Ruling, the learned Magistrate struck out the suit of the Appellant on the grounds that it was time-barred and invoked the doctrines of res judicata and functus officio to decline jurisdiction to entertain a Preliminary Objection dated 23rd June 2021 raised by the 2nd Respondent. 2. The Appellant challenges the impugned Ruling on ten (10) grounds of appeal and seeks the following reliefs: (a) That the appeal be allowed and an order be made setting aside the Subordinate Court's decision dated 22nd July 2022 striking out the Appellant's suit and substituting same with an order dismissing the 2nd Respondent's Preliminary Objection with costs; (b) That the Appellant's case against the Respondents be reinstated and the matter be ordered to proceed on its merits before any other Magistrate; (c) That the costs of this appeal be awarded to the Appellant. **Background facts** 3. The present dispute concerns the ownership and transfer of suit property L.R. No. 12422/749. The following facts are not in dispute: (a) In or about the year 2011, a land transaction was entered into between the deceased John Waweru Kinyanjui and the Respondents. Pursuant to that arrangement, the deceased executed a Power of Attorney to one David Waweru Kinyanjui to facilitate the transaction, and the suit property was subsequently transferred to the Respondents; (b) The Appellant's case is that although the property was transferred to the Respondents, the agreed purchase price was not paid in full. The Appellant further alleges that the Respondents have declined to settle the alleged outstanding balance and that they intend to dispose of the suit property to third parties; (c) The Appellant instituted the suit in 2021, a full decade after the transfer, seeking rescission of the transfer, cancellation of title, and an order compelling the Respondents to re-transfer the suit property. 4. Contemporaneously with the filing of the Plaint, the Appellant filed a Notice of Motion dated 8th March 2021 seeking injunctive relief to restrain the Respondents from dealing with the suit property pending the hearing and determination of the suit. 5. In a Ruling delivered on 26th May 2021, the trial court considered the pleadings and found that the Appellant's claim arose from a transaction that occurred in 2011, and that the suit, having been filed in 2021, was prima facie statute-barred. The Court consequently found that it could not grant injunctive relief in aid of a claim that was untenable in law. The application for injunction was accordingly dismissed with costs. 6. Subsequently, the 2nd Respondent filed a Preliminary Objection dated 23rd June 2021 contending that the suit was time-barred and that the alleged agreement was unenforceable. 7. In its Ruling delivered on 22nd July 2022, the trial court held that the issues of limitation and enforceability had already been determined in the earlier Ruling of 26th May 2021 and were therefore res judicata. The Court further held that it was functus officio in respect of those issues and could not reopen them. The suit was accordingly struck out. **Issues for determination** 8. The following three issues arise for determination in this appeal: **(i) Whether the trial court correctly applied the doctrines of res judicata and functus officio in declining to determine the Preliminary Objection;** **(ii) Whether the trial court correctly characterized the Appellant's claim as contractual and therefore statute-barred under Section 4(1)(a) of the Limitation of Actions Act rather than an action for recovery of land under Section 7;** **(iii) Whether the Preliminary Objection was properly raised as a pure point of law.** **Analysis and determination** **Issue No. 1** **The doctrines of res judicata and functus officio** 9. Central to this appeal is the correct application of the doctrines of res judicata and functus officio. These are powerful doctrines, founded on principles of finality and the need to afford closure to litigants. However, they must be applied with precision and only where the statutory and legal conditions are satisfied. 10. The Ruling of 26th May 2021 was delivered in the context of an application for interlocutory injunctive relief. It was not a final determination of the suit. The trial court, in that Ruling, made observations on limitation and enforceability that were provisional and incidental to the determination of whether interim protection should be granted. The trial court did not finally determine the suit, strike out the Plaint, or dispose of the parties' substantive rights. 11. It is well-established in law that an interlocutory decision, no matter how definitive the observations therein, does not exhaust the court's jurisdiction over the suit. The dismissal of an interlocutory application does not prevent the court from entertaining a Preliminary Objection properly raised subsequently. 12. The doctrine of res judicata operates only where a court has finally and conclusively determined a matter on its merits. As held in **Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017) eKLR,** the doctrine serves the salutary aim of bringing finality to litigation and is designed as a pragmatic and commonsensical protection against wastage of time and resources in endless rounds of litigation. 13. However, the doctrine must be applied with caution. Where the determination is merely interlocutory, provisional, or incidental, res judicata does not attach. The Appellant argues, and we agree, that the trial court erred in treating the provisional observations in the interlocutory Ruling of 26th May 2021 as a final and conclusive determination giving rise to res judicata. 14. Similarly, the doctrine of functus officio applies only to prevent a court from revising or varying a decision it has finally made. Once invoked, a court cannot reconsider a matter it has conclusively determined. However, a court does not become functus officio merely because it has expressed itself provisionally or incidentally in the context of an interlocutory application. 15. By elevating the interlocutory Ruling of 26th May 2021 to the status of a final determination and invoking the doctrines of res judicata and functus officio to decline jurisdiction, the trial court misdirected itself in law. This misdirection occasioned a miscarriage of justice to the Appellant. **Issue No. 2** **Characterization of the suit and the applicable limitation period** 16. The trial court characterized the Appellant's claim as one founded on contract and therefore subject to **Section 4(1)(a) of the Limitation of Actions Act**, which prescribes a six-year limitation period. However, we are of the view that this characterization is not wholly accurate, and the trial court failed to appreciate the true nature of the claim as pleaded. 17. The Plaint makes express allegations of fraud on the part of the Respondents. Paragraphs 23 and 24 of the Plaint specifically allege that the Respondents fraudulently deprived the estate of the late John Waweru Kinyanjui of its interest in the suit property. The Appellant explicitly seeks rescission of the transfer, cancellation of title, and re-transfer of the suit property. These are equitable reliefs typically sought in cases involving fraudulent deprivation. 18. It is trite law that the character of a claim is determined not by the reliefs sought, but by the substance of the pleaded facts. Where a claim arises from allegations of fraud and seeks to recover property allegedly wrongfully transferred, it partakes of the character of an action to recover land. Such a claim is governed by **Section 7 of the Limitation of Actions Act**, which provides a limitation period of twelve years. 19. Furthermore, **Section 26 of the Limitation of Actions Act** provides that where a claim is based on fraud, time does not begin to run until the Plaintiff has discovered the fraud or could, with reasonable diligence, have discovered it. This is a crucial provision that the trial court appears to have overlooked. The Appellant has not pleaded the facts necessary to invoke this section with sufficient particularity, but that is a matter for determination at trial, not at the preliminary stage. 20. It is now settled that a claim for recovery of land based on fraud falls under **Section 7 rather than Section 4(a) of the Limitation of Actions Act**, and that the limitation period is twelve years. Further where a claim is grounded on fraud, the question of when the fraud was discovered is a matter to be ascertained at trial. 21. The suit property was transferred to the Respondents in 2011. If the applicable limitation period is twelve years under Section 7, the suit would only be statute-barred in 2023. The present suit was filed in 2021, well within the statutory period. **Issue No. 3** **Whether the preliminary objection was properly raised** 22. A Preliminary Objection, as established in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** is in the nature of a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. A Preliminary Objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 23. The Appellant argues that the Preliminary Objection on limitation was improperly raised because it required the ascertainment of facts, including the date when the cause of action accrued and the date when the alleged fraud was or could have been discovered. We find merit in this argument. 24. However, it is noteworthy that in the submissions of the 2nd Respondent, it is contended that the issue of limitation is a jurisdictional question that a court can raise suo motu. This is a valid point. Limitation is not merely procedural but jurisdictional. A court lacks jurisdiction to entertain a claim that is statute-barred. This jurisdictional aspect can be raised by the court at the earliest opportunity, even if not pleaded by the parties. 25. Nevertheless, the characterization of the claim and the identification of the correct limitation period are not matters that can be summarily determined without reference to the pleadings and the substance of the facts. The trial court should have analyzed the applicable statutory framework in light of the pleaded facts before determining the limitation question. **The issue of enforceability under the law of contract act** 26. **Section 3(3) of the Law of Contract Act** provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract upon which the suit is founded is in writing and signed by all the parties thereto, with signatures attested by a witness. 27. The Appellant has admitted in the Plaint that the alleged agreement was oral and therefore not reduced into writing, not signed by the parties, and not attested as required under the Law of Contract Act. The consequence of non-compliance with **Section 3(3) is that the contract** is unenforceable. 28. In **Silverbird Kenya Limited v Junction Ltd & 3 Others [2013] eKLR**, the Court held that where a suit is founded on an alleged oral agreement for the disposition of an interest in land that has not been reduced into writing and signed as required by **Section 3(3) of the Law of Contract Act**, the contract is unenforceable as it contravenes that statutory requirement. 29. This Court is therefore of the view that even if the limitation defense were to fail, the Appellant's claim would still be susceptible to a defense based on the unenforceability of the alleged agreement under **Section 3(3) of the Law of Contract Act.** **Procedural fairness and the right to be heard** 30. **Article 50(1) of the Constitution of Kenya** guarantees every person the right to fair administrative action, including the right to be heard. In the context of litigation, this right encompasses the obligation of a court to consider the submissions of the parties and to articulate the reasoning for its decisions. 31. The Appellant filed comprehensive submissions addressing the Preliminary Objection, dealing with limitation, the nature of the claim, the applicable statutory framework, and the principles governing Preliminary Objections. The impugned Ruling does not demonstrate that the trial court engaged with these submissions or articulated reasoned responses to them. 32. By declining to adjudicate the Preliminary Objection on its merits and instead invoking the doctrines of res judicata and functus officio without substantive engagement with the merits, the trial court denied the Appellant the right to be heard. This constitutes a violation of **Article 50 of the Constitution** **Conclusion** 33. For the foregoing reasons, it is the finding of this court that the trial court erred in law in the following respects: 1. In elevating an interlocutory Ruling to the status of a final determination and invoking the doctrines of res judicata and functus officio to decline jurisdiction to entertain the Preliminary Objection; 2. In failing to appreciate that the Appellant's claim, although framed in the language of breach of contract, is fundamentally an action to recover land based on allegations of fraud, and therefore governed by **Section 7 rather than Section 4(1)(a) of the Limitation of Actions Act;** 3. In striking out the suit without affording the Appellant the opportunity to proceed to trial to establish the facts necessary to determine the applicability of **Section 26 of the Limitation of Actions Act.** **Final orders** 34. Accordingly, this Court makes the following final orders: 1. **The appeal is allowed in its entirety.** 2. **The Ruling of the trial court dated 22nd July 2022 striking out the Appellant's suit is hereby set aside.** 3. **The Preliminary Objection of the 2nd Respondent dated 23rd June 2021 is hereby dismissed.** 4. **The suit MILIMANI CHIEF MAGISTRATES COURT CIVIL SUIT NO. E320 of 2021 is hereby restored and shall proceed on its merits in the trial court.** 5. **Each party to bear own costs of the appeal.** **Dated, Signed and Delivered Virtually this 28th day of May 2026.** **E. K. WABWOTO** **JUDGE**