https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4867

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLC NO. E237 OF 2025** **PETER KINYANJUI MWANIKI……………….……1ST PLAINTIFF/APPLICANT** **ANTONY NJENGA MWANIKI………………..…2ND PLAINTIFF/APPLICANT** **(Suing as the administrators of the Estate of STEPHEN MWANIKI NGEKENYA-DECEASED)** **VERSUS** **JASHAVANTI VALABHDASS DEVI PATEL….1ST DEFENDANT/RESPONDENT** **MEGNJI PATEL…………………..…………..2ND DEFENDANT/RESPONDENT** **THE LAND REGISTRAR, THIKA DISTRICT** **LAND REGISTRY……………….…………….3RD DEFENDANT/RESPONDENT** **RULING** 1. What is before this Court for determination is the Applicant’s Notice of Motion Application dated 29/10/2025 brought under Section 13(5) and Section 19(2) of the Environment and Land Court Act, Section 36(1) of the Land Registration Act, and Order 40 Rule 1 and Rule 4(4) of the Civil Procedure Rules seeking the following prayers: 2. **Spent.** 3. **THAT pending the inter partes hearing and determination of this application, a temporary injunction do issue restraining the Respondents, by themselves, their servants, agents or any other persons claiming through them from evicting the Applicants, selling, charging, leasing, transferring, wasting, alienating or in any other manner interfering with the Plaintiff’s enjoyment of land known as Ruiru Town/249.** 4. **THAT pending the hearing and determination of this suit a temporary injunction do issue restraining the Respondents, by themselves, their servants, agents or any other persons claiming through them from evicting the Applicants, selling, charging, leasing, transferring, wasting, alienating or in any other manner interfering with the Plaintiff’s enjoyment of land known as Ruiru Town/249.** 5. **Pending the hearing and determination of this suit, an order of inhibition be issued inhibiting registration of any dealings in relation to all that land parcel known as Ruiru Town/249.** 6. **THAT the costs of the application be provided for.** 7. The application is premised on the grounds that the Applicants, as the lawful administrators and beneficiaries in actual possession of the estate of the late Stephen Mwaniki Ngekenya, have a prima facie case with a probability of success regarding the suit property, parcel number Ruiru Town/249, which legally devolved to the estate upon the deceased's demise. The Applicants aver that the Respondents unlawfully and fraudulently intermeddled with the estate by procuring an illegal transfer, registration, and subsequent transmission of the suit property into their names, alongside the unlawful lifting of a registered caution, without following due process of law. 8. Consequently, the Applicants apprehend imminent eviction and further adverse dealings with the suit property by the Respondents, which acts threaten to cause the estate and its beneficiaries irreparable loss that cannot be compensated by an award of damages, thereby rendering it imperative and in the interest of justice that injunctive resilience and conservatory orders be granted to preserve the substratum of the suit pending inter partes hearing and determination. 9. The deponent also filed a Supporting Affidavit sworn on 29/10/2025 by the 2nd Plaintiff/Applicant. The deponent, Antony Njenga Mwaniki, states that he is duly authorized to swear the Affidavit on behalf of the 1st Plaintiff/Applicant, with both serving as the lawful administrators of the estate of their late father, Stephen Mwaniki Ngekenya, as evidenced by the Grant of Letters of Administration dated 26/04/ 2006 marked as annexure **“ANM 1”**. The deceased was the registered lessee of the suit property, known as parcel number Ruiru Town/249, measuring approximately 0.2166 hectares within Kiambu County, supported by the annexed Lease and Certificate of Lease marked as **“ANM 2**” and **“ANM 3”** respectively. 10. Following the patriarch's demise, the administrators maintained continuous occupation, complied with all lease conditions, and paid Municipal rates, as verified by the Kiambu County Government rate payment receipts and invoices annexed as **“ANM 4(a-c)”** and **“ANM 6(a-h)”**. Official searches dated 29/03/1999 and 22/02/2013, annexed as **“ANM 5a”** and **“ANM 5b”**, further confirm that the property remained registered under the deceased's name as of 2013. 11. The deponent avers that despite having never authorized any transfer of interest since obtaining administration rights in 2006, the Applicants recently discovered through an extract of the land register's Green Card, annexed as **“ANM 7”**, that the suit property was irregularly transferred to Valabhdass Devji Patel and Mavji Megnji Patel, and subsequently transmitted to the first and second Respondents on 30/07/2025. This same Green Card extract revealed that a caution previously registered over the property by their late mother, Ruth Njeri Mwaniki, was surreptitiously removed without due process. The deponent notes that he and the first Applicant are also the legal representatives of their mother's estate under a Grant of Letters of Administration similarly dated 26/04/2006 and annexed as **“ANM 8”**, yet they received no statutory notification regarding the alteration of the register or the removal of the said caution. 12. The affidavit firmly asserts that the lifting of the caution, the subsequent registrations, and the ultimate transmission to the Respondents were fraudulent, illegal, and executed entirely without the knowledge or consent of the Applicants. The deponent details several badges of fraud, claiming that the Respondents colluded to secretly alter the Green Card entries, effect irregular cancellations, and transfer the land without paying due consideration, all with the dishonest intent of defeating the proprietary rights of the estate. 13. Based on these actions, the Applicants express a well-founded apprehension that the Respondents will evict them or further deal with the land to their detriment. The deponent concludes that the estate will suffer irreparable harm and sentimental loss regarding their inheritance if the property is alienated, making it imperative in the interest of justice that the Court grant the temporal preservation orders sought. 14. Before the Application was heard, the 1st and 2nd Defendants, Jashavanti Valabhdass Devji Patel and Mavji Megnji Patel filed a Notice of Preliminary Objection dated 03/12/2025 to have the Plaintiffs' application dated 29/10/2025 and the entire suit commenced by the Plaint of an even date struck out with costs. 15. The primary ground of this Objection is that the suit is completely time-barred under Section 7 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya, which mandates that an action to recover land must be instituted within twelve years from the date the right of action accrued. The Defendants assert that the cause of action crystallized upon the transfer and registration of the suit property to their predecessors-in-title on 23/05/1986, or alternatively, upon the removal of the caution on 28/06/2011. Consequently, filing this suit on 29/10/2025 places the claim well outside the statutory window, as more than fourteen years have elapsed since the removal of the caution and nearly forty years since the initial registration. 16. To fortify this statutory bar, the Defendants invoke several landmark judicial precedents establishing that limitation directly ousts the Court's jurisdiction. They rely on the holding in **Iga versus Makerere University [1972] E.A. 65** to show that a cause of action barred by limitation is a cause of action barred by law, meaning the Court cannot grant relief. They further cite **Bosire Ogero v Royal Media Services [2015] KEHC 4728 (KLR)** to emphasize that the issue of limitation goes directly to the core jurisdiction of the Court, leaving it powerless to entertain statute-barred claims. The notice also invokes the case of **Sohanlaldurgadass Rajput & Another v Divisional Integrated Development Programmes Co. Ltd** [**2021] KEELC 1427 (KLR**), where the Environment and Land Court struck out a similar suit for violating the timeline set by Section 7 of the Limitation of Actions Act. Finally, the Defendants heavily reference the decision in **Raphael Kinoru Wandaka & 2 others v Elizabeth Wambui Mwangi [2019] KEELC 3708 (KLR)**, where the Court dismissed a land recovery suit filed twelve years post-transfer, explicitly holding that Plaintiffs cannot escape the twelve-year rule if they fail to actively protect their purported interests, and reinforcing that an innocent purchaser's ownership rights under Section 25 of the Land Registration Act cannot be lightly impeached. 17. Beyond the statutory limitation, the Defendants contend that the entire suit is *Res Judicata* and constitutes a severe abuse of the Court process. They state that the specific dispute regarding the lifting of the caution lodged by Ruth Njeri Mwaniki was already fully litigated, heard, and determined by a competent Court of law in **Thika Chief Magistrate's Commercial Court Civil Suit Number 260 of 2010**, which culminated in a formal order for the caution's removal on 6/06/2011. 18. Because these issues have already been definitively settled, the Plaintiffs are legally prohibited from re-litigating them. The Defendants aver that the current application is built upon the deliberate concealment of material facts, specifically the existence of that prior 2010 litigation and the reality that the proprietary interest shifted decades ago. The notice concludes that because the proceedings are fundamentally time-barred, settled, and deceptive, the motion and the accompanying Plaint are incurably defective and must be struck out out of hand. 19. In opposition to the Preliminary Objection the Plaintiffs filed written submissions dated 5/05/2026. The Plaintiffs oppose the Preliminary Objection on the primary ground that it fails to satisfy the established legal thresholds, as it does not raise pure points of law but instead introduces highly contested factual issues that require the introduction and testing of evidence. Citing the foundational precedent of **Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696**, the Plaintiffs argue that a valid Preliminary Objection must be argued on the absolute assumption that all facts pleaded by the opposite side are correct, and it cannot be sustained if any fact remains to be ascertained or if it invites the Court to exercise judicial discretion. 20. This position is supported by another case they cited **Dismas Wambola v Cabinet Secretary, Treasury & 5 Others [2017] KEHC 8777 (KLR)**, which restricts the scope of such objections from delving into substantive pleading matters, alongside **Oraro v Mbaja [2005] KEHC 3182 (KLR),** which declares that any assertion bearing factual aspects calling for proof or authentication through the processes of evidence cannot, as a matter of legal principle, constitute a true Preliminary Objection. Furthermore, relying on **George W M Omondi & another v National Bank of Kenya Ltd & 2 others [2001] KEHC 841 (KLR),** the Plaintiffs maintain that while Courts can look at their own clear records, they are strictly forbidden from determining preliminary points tied to contested facts, and they invoke **George Owino Mulanya & 4 Others v Charles Achieng Odonga & Another [2017] KEHC 8910 (KLR)** to separate questions of law from questions of fact that inevitably turn on particular circumstances. 21. In addressing the specific plea of statutory limitation, the Plaintiffs argue that although Section 7 of the Limitation of Actions Act sets a general twelve-year limit for land recovery, Section 26 of the same Act explicitly pauses the clock in matters rooted in fraud until the victim discovers the fraud or could have done so with reasonable diligence. The Plaintiffs assert that the impugned titles and registrations were fraudulently procured and that they only discovered this intermeddling in 2025. 22. They submit that they could not have discovered the fraud any sooner because they held official land registry searches from 29/03/ 1999 and 22/02/2013 showing the deceased patriarch as the owner, coupled with continuous, uninterrupted physical possession and official Kiambu County Government land rate invoices and receipts naming the late Stephen Mwaniki as the proprietor as recently as February 2025. Determining exactly when the fraud was discovered is inherently a question of fact that requires the evaluation of extrinsic evidence, meaning the issue cannot be summarily disposed of as a preliminary point of law. 23. Regarding the Defendants' contentions of *Res Judicata* and abuse of Court process, the Plaintiffs submit that these issues similarly demand strict factual investigation beyond the four corners of the current pleadings. Under Section 7 of the Civil Procedure Act and the guiding decision of the Court of Appeal in **Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others [1996] KECA 102 (KLR),** a plea of *Res Judicata* strictly requires proof of several overlapping elements, including identical parties, matching titles, and a final decision on the merits by a competent Court. The Plaintiffs point out that the Defendants have failed to even provide the pleadings or judgment from the referenced **Thika CMCC Civil Suit No. 260 of 2010** to allow for this mandatory judicial comparison. 24. Similarly, the allegation that the Plaintiffs abused the Court process by concealing material facts or that proprietary interests shifted forty years ago requires the Court to investigate contested historical evidence, which violates the strict rule against expanding a Preliminary Objection into a mini-trial. The Plaintiffs therefore conclude that the objection is procedurally incompetent and pray for its dismissal with costs. 25. The 1st and 2nd Respondent filed what they termed as joinder submissions dated 18/03/2026 in response to the Plaintiff’s written submissions. The 1st and 2nd Defendants maintain that their Preliminary Objection is properly anchored on pure points of law that can be fully determined from the face of the existing pleadings, without necessitating any trial or factual inquiry. Reaffirming the foundational test in **Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors [1969] EA 696**, the Defendants emphasize that a plea of limitation is explicitly recognized by jurisprudence as a prime example of a valid Preliminary Objection. They argue that the Plaintiffs' attempt to convert the limitation question into a factual dispute requiring a full trial is an intentional diversion. On the face of the record, the timeline remains undisputed: the property was registered to the Defendants' predecessors in title on 23/05/1986, and the controversial caution was removed by a Court order on 28/06/2011. Since the present suit was instituted on 29/10/2025, it sits far outside the strict twelve-year statutory boundary prescribed by law. 26. The Defendants reject the Plaintiffs' reliance on the fraud exception under Section 26 of the Limitation of Actions Act, arguing that the protection of this provision is unavailable both procedurally and substantively. Procedurally, they cite **Sohanlal Durgadass Rajput & another v Divisional Integrated Development Programmes Co Ltd [2021] eKLR** to establish that the statutory clock cannot be paused unless fraud is specifically pleaded with full and clear particulars within the plaint, a requirement the Plaintiffs failed to meet by offering only bare, conclusory assertions. 27. Substantively, invoking the Court of Appeal decisions in **Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104 and Wandaka & 2 Others v Mwangi [2025] KECA 83 (KLR)**, the Defendants argue that the statutory standard is one of reasonable diligence, not actual knowledge, meaning a party cannot wilfully blind themselves to public land records and subsequent litigation. Pointing to **Edward Moonge Lengusuranga v James Lanaiyara & Another [2019] eKLR,** they reiterate that time begins to run from the date of registration or transfer, and because the Plaintiffs admitted to conducting an official search in 2013 and had constructive notice of the 2011 Court-ordered caution removal, they cannot plausibly claim they only discovered the alleged fraud in 2025. 28. The Defendants sum up their submissions and argue that the elements of *Res Judicata* and abuse of Court process are clearly discernible from the Plaintiffs' own admissions, rendering the non-production of the physical file from the previous case irrelevant at this preliminary stage. Relying on **George W M Omondi & Another v National Bank of Kenya Ltd & 2 Others [2001] KEHC 841 (KLR)** an authority introduced by the Plaintiffs themselves the Defendants assert that a plea of *Res Judicata* constitutes a pure point of law that is perfectly well-taken as a Preliminary Objection when the existence of prior litigation is uncontested. 29. That because the Plaintiffs do not deny that **Thika CMCC Civil Suit No. 260 of 2010** directly litigated the removal of the same caution, they are legally barred from using a fresh land recovery suit to bypass a fourteen-year-old judicial order that they chose not to appeal or review. The Defendants conclude that merely uttering the word fraud is not a magical talisman that automatically transforms a time-barred claim into a triable issue of fact, and they reiterate their prayer to have the entire suit and application struck out with costs. 30. I note that there were no submissions filed to the Notice of Motion Application dated 29/10/2025. **Analysis and Determination** 1. Having considered the pleadings, Affidavits and the submissions what presents for determination can be determined using the three clear and overlapping legal issues: 2. *Whether the 1st and 2nd Defendants’ Notice of Preliminary Objection satisfies the strict legal thresholds to qualify as a pure objection on points of law;* 3. *Whether the Plaintiffs’ suit is fundamentally statute-barred by the doctrine of limitation under Section 7 of the Limitation of Actions Act (Chapter 22 of the Laws of Kenya) or rescued by the tolling provisions of Section 26 regarding the discovery of latent fraud; and* 4. *Whether the current suit is struck down by the doctrine of Res Judicata and constitutes an impermissible abuse of the judicial process by virtue of prior definitive litigation over the same subject matter in Thika CMCC Civil Suit Number 260 of 2010.* 5. Should the Preliminary Objection survive this baseline inquiry, the secondary issue for determination is *whether the Plaintiffs have met the high, tripartite judicial threshold for the grant of a temporary interlocutory injunction to preserve the substratum of the land parcel known as Ruiru Town/249.* 6. In interrogating the procedural efficacy of the preliminary challenge, this Court must ground its rationale within classical common law boundaries. The case governing these mechanisms remains the landmark decision of the **Court of Appeal for East Africa in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors 1969 EA 696,** where Law JA famously defined the concept by stating verbatim**:** ***"So far as I am capable of defining a 'Preliminary Objection' it arises when a point of law is pleaded, or arises clear out of the pleadings, 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 plaint discloses no cause of action."*** In the same authority, Charles Newbold P clarified the absolute boundaries of this step, stating: ***"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. This strict standard is universally recognized across the commonwealth, echoing the words of the Supreme Court of India in **Ramesh B. Desai v. Bipin Vadilal Mehta 2006 5 SCC 638,** where the Court observed that; ***"A plea of limitation can be decided and determined as a preliminary issue only when it can be done without any separate lookup of facts or evidence, based strictly on the statements contained in the plaint."*** 1. Similarly, Madan J (as he then was) in **Gathoni v Kenya Co-operative Creameries Ltd 1982 KLR 104** underscored the finality and public policy underpinnings of statutory deadlines, declaring that: ***"The law of limitation of actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending Plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest... But, rightly or wrongly, the Act does not help persons like the Applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done."*** 1. A deep study of legal treatises further illuminates this area. As noted in ***Halsbury's Laws of England* (4th Edition, Volume 28, Paragraph 605),** ***"The Courts have consistently discouraged the elongation of proceedings where the record itself reveals an uncalculated delay; the defense of limitation, though a shield rather than a sword, cuts directly to the right of access to a judicial forum if the statutory period has expired without a recognized legal disability."*** 1. This rule is strictly applied because, as observed by the learned author Adrian Zuckerman in his treatise ***Zuckerman on Civil Procedure: Principles of Practice* (3rd Edition, Sweet & Maxwell, 2013),** ***"The public interest requires that litigation must have an end, and Defendants must not be left hanging under the indefinite threat of stale claims where memories fade, documents are lost, and titles become unstable."*** 1. When fraud is introduced as an escape hatch to bypass these boundaries, the standard of pleading shifts dramatically. The Supreme Court of Kenya has firmly established that fraud cannot be thrown around as a vague catchphrase; it must be fully detailed. This is supported by the Court of Appeal in **Wandaka & 2 Others v Mwangi 2025 KECA 83 (KLR)** which noted that while time pauses upon the discovery of fraud under Section 26, the statutory standard is strictly one of reasonable diligence, not actual or subjective knowledge. Consequently, when a party holds public records or has been involved in prior Court actions, they are deemed to have constructive notice. Merely using the word fraud does not automatically turn a clear question of limitation into an issue of fact that requires a trial. 2. Applying these statutory principles and case law to the current dispute, it is clear from the face of the Plaintiffs' own pleadings that this suit is completely time-barred. The Plaintiffs’ claim over Ruiru Town/249 is legally barred because the property was registered to the Defendants' predecessors-in-title as far back as 23/05/1986. Even if the Court applies the most generous possible timeline based on the Plaintiffs' claim of latent fraud, their own documents show that a caution lodged over the property by their late mother, Ruth Njeri Mwaniki, was removed by an explicit Court order on 28/06/2011 in **Thika CMCC Civil Suit No. 260 of 2010**. 3. Furthermore, the Plaintiffs admit they performed an official land search on 22/02/2013. Under Section 26 of the Limitation of Actions Act, the statutory clock starts ticking the moment a party becomes aware of a competing claim or could have discovered it using ordinary diligence. By 2011, or at the very latest during their 2013 search, the Plaintiffs had clear constructive and actual notice of the changes to the land register. Waiting until 29/10/2025 to file this suit means they brought the claim more than fourteen years after the caution was removed, which completely violates the strict twelve-year limit for land recovery set by Section 7 of the Act. 4. Additionally, since the removal of the caution was already fought out in the Thika Chief Magistrate’s Court, this fresh action is a clear attempt to relitigate a settled matter, making it *Res Judicata* under Section 7 of the Civil Procedure Act. As a result, the Preliminary Objection succeeds on its merits, which deprives this Court of jurisdiction and renders it unnecessary to review the merits of the injunction application. 5. Consequent upon the findings and determinations detailed above, this Court finds that the 1st and 2nd Defendants’ Notice of Preliminary Objection dated 3/12/2025 is well-founded in law and must be sustained. Accordingly, the Court issues the following orders: 6. ***The 1st and 2nd Defendants’ Notice of Preliminary Objection dated 3/12/2025 be and is hereby upheld.*** 7. ***The Plaintiffs’ Notice of Motion Application dated 29/10/2025 and the main Plaint filed on the same date are hereby struck out for being statute-barred, Res Judicata, and an abuse of the Court process.*** 8. ***The costs of the Preliminary Objection and the entire suit are hereby awarded to the 1st and 2nd Defendants.*** 9. ***File Closed.*** It is so ordered. **DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS AT VIRTUALLY AT THIKA ON THIS 27TH DAY OF JULY 2026.** ………………….. **MOGENI J** **JUDGE** **In the presence of**: Ms. Makokha for 1st and 2nd Plaintiffs Defendants – Absent Mr. Melita - Court Assistant ………………….. **MOGENI J** **JUDGE**