Mukhwana v Chalicha & 2 others (Miscellaneous Application 119 of 1996) [2026] KEMC 573 (KLR) (20 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT BUNGOMA** **MISCELLANEOUS APPLICATION NO. 119 OF 1996** VICTOR MUKHWANA......................................................APPLICANT **=VERSUS=** WAFULA WAMUKOTA CHALICHA..........................................................1ST RESPONDENT ALBERT WAFULA MASIKA......................................................................2ND RESPONDENT MOSES KHAMALA WAFULA....................................................................3RD RESPONDENT **RULING** The matter before the Court is the Notice of Preliminary Objection dated 27/06/2025 was filed the Respondent in response to the Applicant's Notice of Motion dated 17/02/2025**.** The Preliminary Objection is premised on five grounds that; 1. THAT the Notice of Motion is jurisdictionally incurably impotent, incompetent, as it does not invoke this Court’s jurisdiction as by law legislated and this Court cannot adjudicate a matter where its jurisdiction has not been invoked in accordance with the law and the same is for striking out with costs. 2. THAT this Honourable Court lacks jurisdiction to hear and determine this dispute as against the 3rd Respondent and together with all consequential orders should be dismissed with costs as the same offends the provisions of Section 7 of The Limitation of Actions Act, Chapter 22 of the laws of Kenya the suit being time barred, having been brought outside the statutory limitation of 12 years in view of the Act. 3. THAT this Honourable Court lacks jurisdiction to hear and determine this dispute as against the 3rd Respondent and together with all consequential orders should be dismissed with costs as the same offends the provisions of Section 4(4) of The Limitation of Actions Act, Chapter 22 of the laws of Kenya the suit being time barred, having been brought outside the statutory limitation of 12 years in view of the Act by virtue of section 4 (4) of the Limitation of Actions Act, the Applicant cannot take any action including execution in respect of the decree/judgment of the Kanduyi Land Disputes Tribunal adopted in Magistrate’s court Misc. app No. 119 of 1996 (the 1996 suit). 4. THAT this Honourable Court lacks jurisdiction to hear this matter, and should be dismissed with costs, by didn’t of the law as set out in the Court of Appeal decision of M’IKIARA M’RINKANYA & Another v GILBERT KABEERE M’MBIJIWE [2007] eKLR where it opined WEKESA & SIMIYU ADVOCATES the application is contrary to the decision in ***Myklara M'rinkanya & Another v Gilbert Kabeere M'Mbijiwe [2007] eKLR*** where it opined that; ***“Lastly, it is logical from the scheme of the Act, that a judgment for possession of land, in particular should be enforced before the expiration of 12 years because section 7 of the Act bars the bringing of action for recovery of land after the end of 12 years from the date in which the right of action accrued.”*** 1. THAT it is “meet’ and in furtherance of the overriding objectives of Article 159(2) of the Constitution and the Rules made thereunder for the timely disposal of proceedings that this Court peremptorily strike out the Notice of Motion as an abuse of the process of the Court with costs to the Respondents. The PO was canvassed by written submissions. Both submitted on what constitutes a Preliminary Objection and took divergence views on the fate of the Applicant’s Application dated 17/02/2025. I shall address those submissions in my analysis and determination of issues at hand. **Issues for Determination** 1. The issues falling for determination are:- 2. Whether the Notice of Preliminary Objection raises a proper preliminary objection in law. 3. Whether the Applicant's Notice of Motion dated 17th February 2025 is statutorily time barred. 4. Whether this Court lacks jurisdiction to entertain the said application for being time barred. **Analysis & Determination** 1. **Whether the Preliminary Objection is properly taken** The law on the nature and scope of a Preliminary Objection is settled. In the caseof ***Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696,*** the court defined a Preliminary Objection thus; ***“So far as I am aware 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 has to be ascertained or if what is sought is the exercise of judicial discretion’.”*** **The above position was reiterated and affirmed in the case of *Aviation & Allied Workers Union Kenya -v- Kenya Airways Ltd & 3 others [2014] eKLR****,* where upon quoting the above holding the court concluded that; ***“Thus, a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”*** The 3rd Respondent submitted that this Preliminary Objection was based on undisputed facts discernible from the Applicant’s pleadings and the record in general. This argument was not opposed by the Applicant whose main concern is that, the Respondents should not use the preliminary objection to defeat his interest in the suit land. Because the preliminary objection is founded principally on jurisdiction and statutory limitation, I do find that the same passes the test set out in the two cases cited above. What remains to be seen is whether, the same is well taken and merited. **(ii) Whether the application is statute barred** In his application dated 17/02/2025, the Applicant seeks to enforce a judgment of court dating back to the year 1996. From the record, it can be seen that the award of the Land Dispute Tribunal in Case No. N. Kanduyi/ LDT/7/96 was adopted and made a judgment of this court 20/11/1996. The Respondents argument is that as the application seeks to enforce rights arising from a judgment adopted in 1996, it is caught by the provisions of the Limitation of Actions Act and specifically Section 4(4) thereof. That section stipulates thus; ***"An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due."*** But the Applicant on the other hand, indicates that allowing the orders sought will contravene provisions of Article 10 of the Constitution of Kenya, 2010 which promotes equity and social justice. He added that notwithstanding the provisions of Limitation of Action Act, the court has equitable jurisdiction in holding that the Respondent himself and his father held the suit land in a fiduciary capacity for his benefit. He averred that the doctrine of constructive trust The applicable. He contended that allowing this preliminary objection will occasion injustice to him. He urged the court to dismiss the same. The court having considered the arguments summarized above, it finds that this is a suit which is already determined. Thus, it is not open to litigation on its merits. This means that the arguments of the Applicant on applicability of a constructive trust in his favour and the cases he cited to support the same of ***Chase International Investment Corporation & Another -v- Laxman Kshra & Others [1978] KLR 143 (1976-80) KLR891*** and ***Gearge Chayuga Aliaza -v- Zephania Khisa Saul Eldoret Civil Appeal No. 134 of 2017*** amongst others do not apply. I reiterate that this matter already has a judgment and so, the issue of when and how the Applicant acquired the land is no longer in dispute. That are matters which were relevant during the hearing of the matter before the Land disputes Tribunal and I can see that the same were indeed dealt with there. There is no doubt that the judgment sought to be executed stems from the award which the court adopted herein. As already pointed out above, that award was adopted and made a judgment of this court on 20/11/1996. That is the relevant date for purposes of computation of time in relation to provisions of section 4(4) of Limitation of Actions Act. That section forbids bringing of an action“***upon a judgment after the end of twelve years from the date on which the judgment was delivered..."*** In my considered view, the Application dated 17/01/2025 constitute an action brought by Applicant more than 12 years after judgment. In ***Orion East Africa Limited v Tetu Coffee Growers Co-operative Society Limited (In Liquidation) [2017] KEHC 10146 (KLR)***the court held a similar issue thus; ***“5. From the court record, the judgment sought to be acted upon traces its origin to the year 1996, while the present application was filed on 17th February 2025, approximately twenty-nine years later. No material has been placed before the Court demonstrating that the limitation period was interrupted, extended or otherwise saved under any provision of the Limitation of Actions Act. The inevitable conclusion is that the Applicant's motion seeks to enforce rights long after expiry of the statutory limitation period.”*** Therefore, I do agree with the 3rd Respondent that the Applicant’s application dated 13/02/2025 is statute barred. It could only have been valid had leave for extension of time been sought but which was not. That calls for its striking out. However, the Applicant is free to urge his previous application dated 20/02/1997 by which he had already commenced execution proceedings *vis* the judgment herein. That application is still pending and is by no means statue barred. A further holding in the case of Orion East Africa Limited (supra) at para 17, puts paid this finding. That application was filed before the expiry of the 12 year limitation period and remains pending. Therefore, it is not subject to the provisions of the **Limitation of Section 4(4) of Actions Act.** **(iii) Whether this Court has jurisdiction** Jurisdiction is everything. The celebrated decision in ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1*** is clear on what the court should do when its jurisdiction is ousted. The case stets a legal position that once a court finds that it has no jurisdiction, it must immediately down its tools. Having found that the Application dated 17/02/2025 was filed without leave of court outside the limitation period of 12 years, it follows that the court has no jurisdiction to hear and determine the same. Hence, it is subject to striking out. **Conclusion & Final Orders** In the circumstances, the court concludes that this preliminary Objection is well founded and whilst upholding it makes the following orders, 1. The Applicant's Notice of Motion dated 17th February 2025 is statute barred and is hereby stuck out forthwith. 2. That costs of this Preliminary Objection are awarded to the 3rd Respondent assessed at Kshs. 5,000/= only. It is so ordered. Dated & Delivered in open court this 20th day of August 2026. In the presence/absence of; Applicant- for Mr. Masinde Respondent- N/A for Mr. Wangila **RUTH B.N. MALOBA (MS)** **SENIOR PRINCIPAL MAGISTRATE**