https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5224

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MIGORI ELCLA E011 OF 2025** **PETER MOGERE OBWORO** **ALIAS SAMUEL OMWERI………………....................................APPELLANT** **VERSUS** **JOSEPH ODULO OJWANDO….……..…..........................1ST RESPONDENT SYLVETTER OKEYO OJWANDO..…...............................2ND RESPONDENT** **TOBIAS OJWANDO…………………………………………...3RD RESPONDENT** **LAND CONTROL BOARD,** **SUNA EAST SUB COUNTY……………………………………4TH RESPONDENT** **MIGORI COUNTY LAND REGISTRAR…………………………………….……………….5TH RESPONDENT** **MIGORI COUNTYLAND SURVEYOR………………….…...6TH RESPONDENT** **ATTORNEY GENERAL…………………………………………7TH RESPONDENT** **JUDGMENT** **(Being an appeal from the ruling of the Principal Magistrate Hon. Chrispine N.C. Oruo (PM) delivered on the 21st March, 2025 in Rongo MCELC No. E050 of 2024)** **INTRODUCTION** 1. This is an appeal arising from the ruling of Honourable Chrispine N. C. Oruo Principal Magistrate, delivered on 21st March, 2025 in Rongo MCELC No. E050 of 2024. Following the delivery, and the dissatisfaction on it by the Appellant, he filed a Memorandum of Appeal dated 16th April, 2025. The Memorandum contained the following grounds: - 2. **THAT the learned magistrate erred in law and fact by sustaining the 1stDefendant's Preliminary Objection dated 5th November, 2024.** 3. **THAT the learned Magistrate erred in law and in fact in finding that the Plaintiffs suit is time barred.** 4. **THAT the learned Magistrate erred in law and in fact basing his decision solely on the issue of limitation of time.** 5. **THAT the learned Magistrate erred in law and in fact to and failed to and failed to understand that parties are bound by their pleadings and that** **the Preliminary Objection was not proper in view of the pleadings filed and thereby arriving at a wrong decision.** 6. **THAT the learned Magistrate erred in law and in fact failing to consider that it is only when a breach of contract occurs that a cause of action arises and the breach occurred when the property was transferred to another party thereby arriving at a wrong decision.** 7. **THAT the learned Magistrate erred in law and in fact in not appreciating that time for limitation in fraud cases begins to run from the period when the fraud is discovered.** 8. **THAT the learned Magistrate erred in law and in fact failing to consider that the Appellant had been granted vacant possession by the deceased owners of the land and proceeded to take occupation and planted sugarcane and trees and thereafter the Respondents breached the agreement thereby arriving at a wrong decision.** 9. **THAT the learned Magistrate erred in law and in fact by failing to consider all of the circumstances of the case thereby arriving at the wrong decision.** 10. **THAT the learned Magistrate erred in law and in fact by conferring undue weight to the arguments advanced by the Respondents.** 11. **THAT the learned magistrate erred in law and in fact by placing the Respondent in an advantaged position despite the said Respondent having invoked a wrongful procedure under the law.** 12. **THAT the learned magistrate erred in law and in fact by failing to consider the pleadings, the submissions and authorities place before him by the Plaintiff/Appellant.** 13. The Appellant seeks for orders that the ruling be set aside and be substituted with an order dismissing the Preliminary Objection dated 5th November, 2024. He also prays for reinstatement of his Plaint for trial. He also seeks for costs for this appeal. **BRIEF FACTS** 1. The Appellant had filed a suit against the Respondents vide a Plaint dated 8th October, 2024. He sought orders, inter alia, a permanent injunction restraining the Respondents from interfering with the suit parcel Kamagambo/Kanyajuok/272, a resurvey of the land and cancellation of the resultant titles from the subdivisions that were in the deceaseds’ name. 2. The 1st, 2nd and 3rd Respondents filed separate Defences by which they denied the allegations in the Plaint. This was vide their statements of Defence dated 5th November, 2024. The 1st Respondent also filed his Notice of Preliminary Objection dated the same date as the Defence. He posited that the suit was statute barred, having been commenced 40 years after the cause of action arose. 3. The preliminary objection was canvassed by way of written submissions. The learned trial magistrate in his ruling dated 20th March, 2025, delivered on 21st March, 2025 found that the suit was statute barred. He allowed the Preliminary Objection and dismissed the suit on that account. The Appellant being dissatisfied with the ruling filed the present appeal. It was canvassed by way of written submissions. **SUBMISSIONS** 1. Learned counsel for the Appellant filed his submissions dated 7th November, 2025. In them he gave the background of the matter. He based his issues for determination on the grounds of appeal as listed in his Memorandum of Appeal. 2. He relied on Section 26 of the Limitation of Actions Act. He also cited the cases of **Central Organization of Trade Unions (K) V Erick Wanjoike & Others (Civil Case No. 248 of 2018)**and**Wandaka & 2 Others V Mwangi (Civil Appeal 36 of 2019) [2025] KECA 83 (KLR).** 3. It was his submission that the Preliminary Objection was based purely on the standard limitation periods as set out in **Section 7** of the **Limitation of Actions Act.** He argued that this Objection could not be sustained when a Plaintiff pleaded fraud. 4. To explain it further, he submitted that the 12-year period only starts from the discovery of the fraud. Thus, it did not start running from the 1978 when the suit land was purchased. In conclusion, he urged the court to allow the appeal and have the suit reinstated for full hearing on its merits. **RESPONDENTS’ SUBMISSIONS** 1. The 1st to 3rd Respondent did not file any submissions. But the 4th, 5th, 6th and 7th Respondents filed Written Submissions in Opposition to the Appeal. They began by giving an introduction which gave the background of the suit and its institution. I need not repeat it here. They then delved into discussing whether the Preliminary objection met the threshold set out in **Mukisa Biscuit Manufacturing Co. Ltd v West End distributors Ltd [19691 EA 696**. They explained what a preliminary objection is, stating that it must be based on a point of law as per the above case. They argued that each limb of the Preliminary Objection arose squarely from the facts pleaded by the Appellant himself and from documents exhibited on the record and required no further evidence. 2. They submitted that the suit was time barred as per grounds 2, 3, 5 and 6 since the cause of action arose in 1978 upon the execution of the sale of land agreement or at the very latest shortly thereafter upon any refusal or failure to complete the transfer yet the suit was filed 46 years later. They stated that this fell squarely outside the limitation periods prescribed by the Limitation of Actions Act CAP 22 which is 6 years for actions founded on contract under section 4(1) and 12 years for actions for recovery of land under Section 7. Further, that Section 3 of the Limitations of Actions Act bars the court from entertaining a suit instituted after the expiry of the applicable period. 3. The Respondents argued that an attempt to invoke the fraud exception under section 26 or the trust exception under Section 20 of the Limitation of Actions Act must fail since fraud was never specifically pleaded with the particularity the law demands and a bare unparticularized. 4. They argued that the Appellant claim of his long occupation and use of the portion purchased founded a distinct and independent cause of action in adverse possession under sections 7, 13 and 38 of the Limitation of Actions Act, yet it was not in the cause of action pleaded. They submitted that the trial court could not be faulted for declining to import an unpleaded cause of action to rescue an otherwise time barred claim. 5. They argued that the Respondents did not breach the agreement as they were not parties to the agreement. It was their view that the transfer of the suit land to a third party was a completely different transaction. The cause of action did not arise at the time of the transfer but rather upon the execution of sale of land agreement between the Appellant the deceased seller. 6. On whether the Appellant had capacity to deal with, sue or transact over the Estate of the deceased vendor in the absence of a grant of representation as raised in grounds 7, 8, 9,10 and 11 they argued that the agreement made in 1978 between the Appellant and Ojwando Odula was at its highest could only have bound Ojwando Odula's undivided one half share in the suit land since Ojwando Odula and Raphael Orwanda having held the land in equal shares. Further, that Ojwando Odula had no capacity to sell Raphael Orwanda's share and no evidence suggested that Raphael was ever party to or consented to the 1978 agreement. 7. They submitted that upon the death of a landowner, no person may deal with, transact over, sue or be sued in respect of the deceased person's estate save in the capacity of a personal representative. He relied on Section 82 of the Law of Succession Act. They summed it that no grant had ever been extracted over the Estate of Ojwando Odula and Raphael Orwanda hence in the absence of the grant there was no one competent who conferred, confirmed or transferred any interest in Ojwando Odulo's share to the Appellant or to be sued effect the sale of land agreement of 1978. They then argued that although the trial court did not make a finding on this preliminary objection, the suit was incompetent for want of capacity. 8. The other issue they raised was whether the sale of land agreement made on 1978 was void ab initio. They argued that it was void ab initio. It was their view that the agreement did not run against the Land Control Board, the land registrar or land surveyor hence they could not void the agreement under the Land Registration Act 2012. They argued that such issues would require evidence. They submitted that there was no application for consent ever placed before the Board and there were no evidence before the court that the parties to the 1978 agreement ever appeared before the LCB within 6 months. Further, that no judicial review proceedings were filed challenging any decision act or omission of the board were ever brought. They submitted that the 3rd, 4th and 5th Respondents were not proper parties to the substance of the dispute herein. Further, fraud had not been pleaded or proved against the Respondents hence the suit failed in limine because of Limitation. It was their view that the Respondents invoked the right procedure under the law as the Preliminary Objection was sufficient to dispose of the matter without the case proceeding to full trial. 9. While relying on the case of Oindi v Cheriro & another (Civil Appeal E058 of 2024) [2026] KEHC 3054 (KLR) (9 March 2026) (Judgment) they concluded the trial court correctly upheld the Preliminary Objection. They prayed that the appeal be dismissed. **ANALYSIS AND DETERMINATION** 1. Upon consideration of the grounds of appeal, pleadings, the law, the rival submissions and authorities cited, the following issues commend themselves to me for determination: 2. **Whether the trial court erred in allowing the 1st Respondent’s Preliminary Objection dated 5th November, 2024.** 3. **Who should bear the cost of the appeal.** 4. The decision challenges the exercise of discretion on analyzing the pleadings and the law. Regarding instances where the Court exercises discretion and an appeal arises therefrom, it is obligatory for the appellate court has to consider whether the trial court exercised it injudiciously and or proceeded on the wrong principles or included matters he ought not to have included or failed to take into account some he ought to have considered, or if the decision was plainly wrong. Thus, in **Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] KECA 373 (KLR)** the court held as follows: ***“…Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule”.*** 1. Similarly, in **Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR** the Court of Appeal held that: ***“…the Court of Appeal, in interfering with the exercise of discretion of the trial Judge appealed from, ought to satisfy itself that the exercise of that discretion either way was improper and therefore warrants interference.”*** 1. Moreover, in **Edward Sargent versus Chotabha Jhaverbhat Patel [1949] 16 EACA 63**, it was held that there is no bar to an appeal lying to an Appellate Court against an order made in the exercise of judicial discretion, but for the Appeal Court to interfere only if it be shown that the discretion was exercised injudiciously. 2. Furthermore, in **Mbogo and Another v Shah [1968] EA 93** at **96** the court held: **“*For myself I like to put it in the words that a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has*** ***misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been mis-justice.”*** 1. Also, in **Agola v Ngodhe (An administrator to the Estate of Zakayo Ngodhe) (Environment and Land Appeal E025 of 2024) [2025] KEELC 1367 (KLR) (6 March 2025) (Judgment),** this court stated; ***“As for the instant appeal, it is clear that it arose from the low court’s exercise of discretion. Regarding appeals of such nature, the appellate court will not normally interfere with the discretion of the trial court unless the trial magistrate or judge exercised the discretion wrongly, injudiciously or misdirected himself in some matter thereby arriving at a wrong decision, the decision clearly wrong.”*** 1. Also, in **Nyaoke & 7 others v Ayaga (Environment and Land Appeal E024 of 2024) [2025] KEELC 7345 (KLR) (28 October 2025) (Judgment)** this court held, *“Again, it is worth of note that this is an appeal that challenges the exercise of discretion by the trial court. The principles that govern the instances that an appellant court may interfere with a decision arrived at by exercise of discretion by a court appealed from are now settled. This court must be cautious in deciding to interfere with the discretion of the trial court. If I must do so, I should* *not substitute my decision with the that of the trial court. I must consider and find, if I have to overturn that decision, that the trial court failed to act judiciously or was plainly wrong on principles that he proceeded on or considered or failed to consider factors which he ought not or ought to have considered, respectively.”* 1. In **Lmk Investment Limited & another v Oyopudo & 2 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 388 (KLR) (29 January 2026) (Judgment)**, this Court held, “***Regarding where the Court exercises discretion and an appeal arises therefrom the court has to consider whether exercised injudiciously and or proceeded on the wrong principles or included matters he ought not to have included or failed to take into account some he ought to have considered.***” 1. Additionally, in **Oyugi v Koywer (Environment and Land Appeal E057 of 2024) [2026] KEELC 1083 (KLR) (26 February 2026) (Judgment)** this Court held, ***“But for the instant appeal, the decision appealed from was one where the court made a determination by way of exercise of discretion. In relation to that, many decisions have been made guiding on how the appellate court should handle an appeal arising from it. In such circumstances, the court has to consider whether exercised injudiciously and or proceeded on the wrong principles or included matters he ought not to have included or failed to take into account some he ought to have considered.”*** 1. I now being with the first issue identified above. The submissions by the State invited he Court to find that the trial magistrate was right in considering the pleadings and he evidence on the record or filed with the pleadings. This Court will not agree to that because to consider evidence in order o determine a preliminary objection would make the objection cease to be one. 2. That aside, regarding the instant appeal, the grounds of appeal revolve around the exercise of discretion by the trial magistrate. The grounds may be condensed or clustered together as hereinafter. The Grounds of appeal 1, 2, 3, 5, 6, 8, 9, 10 and 11 relate to one decision that the trial magistrate made: that the trial magistrate concluded that the suit was time barred thereby erring in law by upholding the preliminary objection. 3. The 4th Ground of appeal, much as it ties to the pleadings that were considered, was that the trial magistrate erred in law in failing to appreciate that parties are bound by their pleadings. 4. Regarding the 7th Ground of Appeal required evidence to be considered yet the issue before the trial magistrate was an alleged point or points of law that were breached by the Plaintiff in his pleadings. This Court needs not consider it here. 5. Turning then to the two grounds of appeal as summarized above, generally, I will begin with the 4th one which is that the trial magistrate erred in law in failing to appreciate the legal position that parties are bound by their pleadings. It is alleged that by failing in that respect the trial magistrate erred in not finding that the Preliminary Objection was not proper in view of the pleadings filed and thereby arriving at a wrong decision. 6. Indeed, in law, parties are bound by their pleadings. They ought not to urge their cases, adduce evidence and by the same token urge preliminary objections that are outside their pleadings. In ddsdsf, this Court held that; “***To determine the issue, the law is that parties present their cases to courts or judicial bodies through pleadings. They bind themselves to their pleadings. The starting point here is that pleadings are a critical nerve in the life of any claim. Parties must always pay attention to their pleadings because they are bound by them. They cannot trudge beyond their claims.***” 1. This Court is further fortified by the Supreme Court of Kenya decision in **Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR** where it,while discussing the essence of pleadings in an election petition found and, held as follows in respect to:- ***“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings...’”*** 1. Also, in **Odongo v Wadiya & 2 others (Environment and Land Appeal 029 of 2025) [2025] KEELC 7976 (KLR) (13 November 2025) (Judgment)**, this court held; ***“Parties bound by their pleadings. They are not permitted to depart in adduction of evidence from the pleadings otherwise it would amount to trial or defence by ambush. One’s case must be stated and made plain to the other or adverse party so that they know what to expect both in pleadings and evidence so that they too prepare. To do otherwise would lead to an unfair trial which is not only unconstitutional but would open a den and present to the adverse party of a boundless marouding mongrel which would obviously devour them. That would be unfair and an uneven ground for play.”*** 1. Additionally, in a fairly similar issue for determination, A. C. Mrima J. in the case of **Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR**, stated as follows: - ***“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”*** 1. In **Tolksdorf v Mwangi & 3 others (2025) KEELC 848 (KLR)**, the court restated this principle by holding that; ***“Additionally, this is an issue that was not pleaded in them Plaint dated 8th April 2022. It is trite that parties are bound by their pleadings and cannot be allowed to depart from the same.”*** 1. Regarding this ground then, I have considered the said preliminary objection document filed, the pleadings of the parties, and the ruling of the Court. In comparing them all, I find that the trial court, indeed, analyzed whether the issues raised in he Objection, such as limitation of time or the suit being time barred flowed from pleadings. But he did not consider this singly as against each of all of the points raised. He omitted some critical points in others or assumed as much. Thus, in my view, while the Court was supposed to be alive to this important principle of law that parties are bound by their pleadings, it failed to consider the important point that the 1st to 3rd Defendants were bound by their pleadings hence the Objection they raised was not in respect of the suit land. This is because they pleaded on totally different parcel of land from the ones claimed on by the plaintiff. The plaintiff’s cause of action was on parcel numbers Kamagambo/Kanyajuok/272 and Kamagambo/Kanyajuok/2501 to 2506 while the Defendants’ defences were in respect of parcel Nos. Kamagambo/Kanyimach/272 and Kamagambo/Kanyimach/2505. Furthermore, the Preliminary objection could not be reconciled with the Defences on this aspect of the suit parcels in issue as its content related to parcel No. Kamagambo/Kanyajuo/2501. Therefore, this ground of appeal succeeds. 2. I now turn to the merits of the appeal by considering whether the trial court exercised its discretion properly and arrived at the correct conclusion, that the suit was time barred. The claim by the Plaintiff, now appellant, was that he bought land comprising in one and half acres being part of parcel No. Kamagambo/Kanyajuok/272 in 1978. That while the seller did not transfer it to him he gave him occupation and he settled on it. He discovered in 2018 that the same had been fraudulently, illegally and uprocedurally transferred to and registered in the 1st Defendant’s name in 2015 and thereafter subdivided into various portions, namely Kamagambo/Kanyajuok/2501, 2502, 2503, 2504, 2505 and 2506 respectively. He sued the 1st, 2nd and 3rd Defendants whom he alleges did not have letters of administration or authority to transfer and even subdivide the land. 3. By his Plaint dated 8th October, 2024, the Appellant, under paragraph 10, stated that on 9th February, 1978, he had purchased 1½ acres of the suit parcel from the Ojwando Odula and Raphael Orwanda (now deceased). According to paragraph 12, the former died on 4th July 1986 while Raphael Odula died on 20th September 1998. 4. It was his case that he immediately took possession until 2018 when the 1st and 2nd Respondents’ kin chased him away from the suit property. He claimed that he conducted searches where he discovered that the suit property had been fraudulently transferred to the 1st Respondent without the consent of the beneficiaries of the estate of Ojwando Odula (deceased). He prayed for various reliefs in respect of the specific parcels of land named above. 5. It is important to note that the parcels of land the Plaintiff raised a claim over are different from the one that the Defendants raised a Defence over, as seen below because they all referred to parcel Nos. Kamagambo/Kanyimach/272 and Kamagambo/Kanyimach/2505. 6. The 1st to 3rd Defendants filed their separate Defences each dated 5th November 2024. The 1st Defendant admitted the descriptive paragraphs 1 to 8 of the Plaint. He, however, denied, between paragraphs 6 and 9, particularly, that the Plaintiff was granted possession of the suit land; pleaded that the sale was void; denied the claim of the plaintiff farming on the land until 2018; and denied the particulars of collusion, illegality and fraud. He also denied the subdivisions and particulars of damage. He prayed for the dismissal of the suit. 7. The 2nd Defendant’s and the 3rd Defendant’s Defences were similar as the 1st Defendants in every respect on the aspects summarized above. This Court need not rehash them. 8. These were the Pleadings of the parties, which founded the preliminary objection whose determination led to the instant appeal. 9. Before the matter was set down for hearing, the 1st Respondent filed a preliminary objection dated 5th November, 2024 where he raised 5 grounds. 10. In the case of **Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696**, the court held as follows: **“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…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 had to be ascertained or if what is sought is the exercise of judicial discretion.”** 1. Also, in ***Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others [2004] e KLR***, the same Court held that, *“We are of the considered view that if a party wishes to raise a Preliminary Objection and files in Court a Notice to that effect and is subsequently served on other parties to the suit, the Preliminary points should be sufficiently particularized and detailed to enable the other side and indeed the court to know exactly the nature of the preliminary points of law to be raised. To state that „the application is bad in law? without saying more does not assist the other parties to neither the suit nor the Court to sufficiently prepare to meet the challenge. If it is only at the hearing that the Preliminary Objection is amplified and elaborated, it gets the other side unprepared and is reminiscent of trial by ambush.”* 1. Also, in ***SUSAN WAIRIMU NDIANGUI V PAULINE W. THUO & ANOTHER [2005] eKLR****,* Musinga J as he then was held as follows:- “*a preliminary objection should not be drawn in a manner that is vague and non-disclosing of the point of law or issue that is intended to be raised. It should clearly inform both the court and the other party or parties in sufficient details what to expect.”* 1. From the above, it is trite law that a preliminary objection ought to raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to get other facts to exercise judicial discretion. 2. I have perused the five issues or points as raised in the preliminary objection, that is, as points (a) to (e). It is not in dispute that they majorly revolve around factual issues which remain contested and can only be determined upon production of evidence. 3. The only issue that raised a point of law was **b) ii)** where the 1st Respondent claimed that the suit was statute barred since it had been filed 46 years after the cause of action arose. To explain the finding above, this Court looked at each of the points which were put forth as preliminary points of law. They appear at pages **119** to **121** of the Record of Appeal. For instance, when the 1st to 3rd Defendants state that the claim on parcel number 272 in issue was time barred because it was transferred from Ojwando (deceased) to the Plaintiff and lacks capacity, these are factual issues. The second issue that the suit is incompetent for enjoining the Estate of deceased owners, that he purchase of the 1 acre was bought in 1978 hence the suit not maintainable, or that a consent was not obtained, among others, are all to be proved by way of evidence. 4. Thus, to be specific, for preliminary point (a) in the Objection, the Defendant raises the point that he Plaintiff lacked capacity to sue on behalf of the Estates of Ojwanda Odula and Raphael Orwando Oula. Contrary to the submissions by the 4th to 7th Respondents, this in my view was not a point that would succeed because, first, the 1st to 3rd Defendants admitted at paragraphs 2 of their Defences that they were sued in their personal capacities, and nowhere did they raise the Defences that they held the suit lands for and on behalf of the Estates of the deceased. The plaintiff sued in his capacity as a buyer who was expecting to be given the registration of the land he allegedly bought only to find in 2018 that it had been illegally, fraudulently and unprocedurally transferred to the 1st to 3rd Defendants. He had a claim against them individually. Thus, according to the Plaintiff, the allegations of fraud and others attached to the persons sued individually. There was no need to obtain letters of administration in order to sue them. If the three were of the view that the Estates were involved, it was upon them to apply that the said Estates be joined to the suit. 5. Regarding the issue of purchase of one and half acres in 1978 as raised in ground (b), that is a factual issue. It is not a point of law. Also, about the sale being null and void for want of a consent from the Land Control Board, this is a matter of evidence and not law. In any event the claim of he Plaintiff goes beyond the obtaining of the consent: it is also on equity and beneficial interest. He is not suing for breach of contract or enforcement of the agreement. His claim goes to ask the Court to consider whether the 1st to 3rd Defendants can recover land he alleges to have occupied beyond 13 years, that is from 1978. 6. Further, regarding nonjoinder of the Estate of the deceased, Order 1 Rule 9 of the Civil Procedure Rules is clear that a suit cannot be defeated for nonjoinder or misjoinder of a party. But even so, the issue of intermeddling of the Estates of he deceased is an issue to be determined by evidence because the Plaintiff’s pleadings are he bought the parcels during the lifetimes of the deceased. This the Defendants do not deny save that they plead in answer, for instance, that the 1978 agreement was void for want of consent. Further, as to whether an equitable remedy as pleaded at points (d) and (e) of the Objection can or cannot issue or that the Plaintiff is an imposter, that is a matter of evidence: it is not a point of law. Lastly, as to whether the other parcels of land other than parcel Nos. Kamagambo/Kanyajuok/2505 can be left out of proceedings, it is not a point of law but a fact to be deduced at the hearing in relation to how they do not relate to parcel No. 272 from which subdivisions arose hence the need for evidence that the order of cancellation of all the subdivisions would not affect them. 7. It leaves this Court to determine the merits of the finding on only one point of law: that the suit was time barred. Regarding that the suit was time barred, it is not in dispute that this is raised a point of law where the trial court rightfully made a finding on the same. **Section 7** of the **Limitation of Actions Act** provides that an action to recover land may not be brought after the end of 12 years from the date the right of action accrued to the Applicant. 8. Limitation of time in fraud cases or claims under **Section 26** of the **Limitation of Actions Act** does not start running until when the Plaintiff has discovered the fraud, or mistake or from the time he should have discovered it with reasonable diligence. 9. The trial Magistrate while in agreement with the 1st Respondent held that the suit was time barred based on the fact that the transaction of the suit parcel took place on 9th February, 1978 which was almost 46 years ago. It was his finding that the suit ought to have been filed within 12 years from the time hence the cause of action arose that is in 1990. 10. The Appellant argued, in line with Section 26 of the Limitation of Actions Act, that the limitation period of 12 years begun to run when he discovered that the suit property had been fraudulently transferred to the 1st Respondent without the consent of the beneficiaries of the deceased estate. From the pleadings, it is not in dispute that the Appellant discovered this fact in 2018 when he conducted an official search and discovered that the suit property had allegedly been illegally and fraudulently transferred to the 1st Respondent on 9th May, 2015. Those were the Pleadings as they disclosed in the trial court. 11. In the case of **Peter Koipeitai Nengisoi V William Nyamari Isaac Ole Tureti (Sued as the Legal Representatives of the Estate of Justus Tureti Obara, Deceased) [2021] KEELC 367 (KLR)** the court held that time begins to run upon the discovery of fraud. 12. It is this court’s view that since the claim by the Appellant was that of fraud, the trial Magistrate, in determining the Preliminary Objection, ought to have considered the timelines as to when the fraud occurred *visa vis* when the Appellant discovered it. The critical point is when the plaintiff discovered the fraud or when, if he exercised due diligence would have discovered it. The Peadings herein show that the Plaintiff was in occupation all along quietly and only discovered the fraud when in 2018. There was no requirement that he keeps checking the on the validity or status of the title as to discover he fraud much earlier. From experience, in ordinary prudence, these issues get discovered when a problem arises which cajoles the owner of a property to confirm what is happening or happened on the title as to cause the same to be challenged through or tending to favour those new circumstances. 13. It is not in dispute that the time that the Appellant discovered the fraud perpetrated by the Respondents on the suit land was in 2018 and therefore filing of the suit in 2024 was well within the 12-year timeline. It is notable, therefore, that the trial magistrate erred in his finding by failing to consider the pleadings as filed with regard to the timelines they disclosed. 14. Consequently, the appeal is merited. It is hereby allowed as prayed. The suit at the trial court is hereby reinstated for hearing and remitted for determination on merit before the court of competent jurisdiction. 15. It is so ordered. **Judgment dated, signed and delivered virtually via the Teams Platform this 31st day of July 2026.** **HON DR. *IUR* NYAGAKA,** **JUDGE** **In the presence of,** Mr. Ongoto Advocate for the Appellant Appellant too. Ms. Opiyo for 4th to 7th Respondents Mr. Oduk Advocate for 1st to 3rd Respondents (absent)