Margaret Wairimu Magugu v Karura Investment Limited & 4 others [2019] KECA 653 (KLR)

The Court relied on the Mukisa Biscuit definition of a preliminary objection, which expressly lists a plea of limitation as an example. In the present case, the question whether the claim was barred by limitation was determinable with reference to the pleadings alone, since the nature of the cause of action and the date of accrual were evident on the face of the plaint. The appellant's contention that a substantive application was necessary was rejected as without merit.

Section 7 bars actions to recover land after 12 years from accrual. The right of action, if any, first accrued to the deceased upon the October 1993 registration. The deceased lived a further 19 years without challenging the registration, expiring on 15 September 2012. The appellant, claiming through the deceased as administratrix, filed suit in January 2017, approximately 24 years after accrual, and could not revive the expired claim through the estate.

Section 26 postpones limitation until discovery of fraud or until discovery was reasonably possible. Due diligence entails proactive care. The 1st respondent was registered on 25 October 1993, took possession in the 1990s, paid rates and utility charges and tended coffee on the land. The Court endorsed the trial judge's finding that the deceased's lifetime and the open occupation would have aroused suspicion, and that the appellant was attempting to circumvent Section 7 by claiming late discovery.

Having concluded that the claim was statute barred and that limitation goes to jurisdiction, the Court declined to consider the alternative ground on which the trial court had struck out the suit. The trial court had found the suit both an abuse of process and statute barred, but the appellate disposition rested solely on limitation.