Kabogo v Gitau
The bottom line
#Kenya's Court of Appeal revived a land fraud and trust claim against Kabogo, ruling it must go to a full hearing rather than be struck out early.
What this practically means
#Executive summary
#Key legal issues
#Limitation of actions in claims founded on fraud
On the pleadings, the appellant knew or ought to have discovered the fraud by 2012, and no action was taken until 2016; but the plea of trust brought the claim within section 20(1) of the Limitation of Actions Act, making section 4 inapplicable.
Section 4 prescribes three years for actions founded on tort, and section 26 postpones the start of limitation until discovery of fraud. From the pleadings and witness statement the appellant knew of the fraud at the latest in 2012. However, having pleaded and particularised trust and fraudulent breach of trust, the appellant fell within section 20(1), under which no limitation period applies to a beneficiary's action for fraud or fraudulent breach of trust, so the issue required a full hearing.
Whether the preliminary objections were properly taken as pure points of law
The objections were not properly taken because a primary factual issue - the existence of a trust - had first to be determined on evidence.
Applying Mukisa Biscuits, a preliminary objection raises a pure point of law on the assumption that all facts pleaded are correct. If the facts pleaded by the appellant were assumed correct, the three-year limitation period would not apply and the trust plea would engage the proviso to section 3(3) of the Law of Contract Act. The trial court instead made findings of fact about the transactions and the absence of a trust, which could only be determined after hearing evidence in the usual manner.
Section 3(3) of the Law of Contract Act and claims based on oral agreements over land
The trial court misapprehended the proviso to section 3(3) by considering only the public auction scenario and ignoring the resulting, implied or constructive trust scenario.
All contracts for the disposition of an interest in land must be in writing, signed and attested, failing which they are unenforceable. However, the proviso expressly excludes the subsection from affecting the creation of a resulting, implied or constructive trust. The appellant's case was based on fraudulent breach of trust; that plea brought the transaction within the proviso, and the trial court erred by addressing only the auctioneer scenario.
Raising new issues for the first time on appeal
The appellant could not raise adverse possession, unjust enrichment and Order 11 issues on appeal as they had not been raised in the decision appealed against.
An appeal must be directed at the decision being challenged, and rule 107 requires parties to restrict themselves to the four corners of the grounds of appeal. Raising new points would metamorphose the appellate court into a trial court and prejudice the respondent. The authorities establish that a new point is allowed only where the evidence establishes beyond doubt that the facts would support the new plea.
Legal principles established
#- A party cannot raise a new point for the first time on appeal where the trial court had no opportunity to consider it.
- Where a claim pleads and particularises a trust in respect of a fraudulent breach of trust, section 20(1) of the Limitation of Actions Act displaces the limitation periods in section 4, and the issue cannot be resolved on a preliminary objection.
- A plea of trust, unless successfully challenged, brings a transaction within the proviso to section 3(3) of the Law of Contract Act.
- A preliminary objection cannot be sustained where the determination of the objection requires ascertainment of facts, such as the existence of a trust.
- The proviso to section 3(3) of the Law of Contract Act imports two separate scenarios: contracts made in the course of a public auction, and transactions creating a resulting, implied or constructive trust.
Court orders
#- 1.The decision of the learned Judge allowing the preliminary objections was set aside
- 2.A decision dismissing the preliminary objections was substituted therefor
- 3.The matter be heard and determined in the usual manner before a Judge other than Gacheru, J
- 4.The costs of the appeal were awarded to the appellant
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against a High Court ruling striking out the suit (Court of Appeal Act and the Court of Appeal Rules, 2022, rule 88 and 107 invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njenga v Ruto (Environment and Land Appeal E023 of 2023) [2026] KEELC 3048 (KLR)[2026] KEELC 3048 (KLR)20 May 2026
- Kenindia Assurance Company Ltd v Kipnyekwei t/a Nyekwei & Company Advocates (Environment and Land Appeal E033 of 2022) [2026] KEELC 2694 (KLR)[2026] KEELC 2694 (KLR)7 May 2026
- Gachunga (Suing as the Administrator of the Estate of Joseph Gachunga Mwangi) v Muthecha (Sued as the Administrator of the Estate of Geoffrey Muthecha Gitau) (Environment and Land Case E072 of 2025) [2026] KEELC 735 (KLR)[2026] KEELC 735 (KLR)10 Feb 2026followed
- Musimba v Kathuma (Environment and Land Case E040 of 2022) [2025] KEELC 6613 (KLR)[2025] KEELC 6613 (KLR)2 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kabogo v Gitau", Case Analysis (2025). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/193/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.