Vaz v Oyatsi & 2 others (Civil Appeal E035 of 2022) [2025] KECA 251 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that claims of continuing trespass on land and fraud discovered later are not time-barred, keeping the estate's land suit alive.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in law in dismissing the Attorney General's preliminary objection on the ground that the respondents' suit was statute barred
- 2.Whether the respondents' claim in trespass was barred by limitation given the appellant's occupation of the suit property since 2008
- 3.Whether the respondents' fraud claim was time barred, having regard to when the alleged fraud was discovered
Key legal issues
#Nature and scope of a preliminary objection
A preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or where judicial discretion is sought.
The court restated the classic Mukisa Biscuit formulation, as cited with approval by the Supreme Court in Hassan Ali Joho and in IEBC v Jane Cheperenger. Because the respondents' claim of trespass and fraud depends on contested facts, the limitation objection could not be resolved as a preliminary point without determining merits.
Whether a claim of continuing trespass is statute barred under section 7 of the Limitation of Actions Act
A claim founded on continuing trespass is not time barred because each continuance of the trespass constitutes a fresh cause of action.
Relying on Isaack Ben Mulwa v Jonathan Mutunga Mweke, Winfield and Jolowicz, Muthiora v Marion Muthama Kiara, Jowitt's and Black's Law Dictionary, and Clerk & Lindsell, the court held that continuous occupation without consent amounts to a continuing tort giving rise to successive causes of action, so the respondents' trespass claim was not barred.
Limitation in fraud claims and when time begins to run
In fraud, the limitation clock starts when the victim discovers the fraud or could with reasonable diligence; whether the respondents discovered the alleged fraud in 2019 is a matter for the trial court on evidence.
The court adopted the discovery rule, noting the respondents claimed to have discovered the alleged fraud upon the National Land Commission's determination of 15th February 2019. Since the appellant denied the fraud, the factual dispute could not be resolved on a preliminary objection, and the learned Judge could not be faulted for finding the suit within the statutory period.
Legal principles established
#- Preliminary objections must be purely on points of law and cannot invite determination of contested facts or merits
- Every continuance of a trespass is a fresh trespass giving rise to a new cause of action from day to day for as long as the trespass continues
- In a claim of fraud, time begins to run when the victim discovers the fraud or could have discovered it with reasonable diligence
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the extract
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory ruling of the High Court (Constitution and Court of Appeal appellate jurisdiction; specific provision not stated in the extract)
Relief refused
#The appellant's appeal against the dismissal of the preliminary objection and the maintenance of status quo
The claim in continuing trespass is not time barred and the fraud discovery question is a matter for trial
Costs
The appeal is dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
Each action of trespass constitutes a fresh and distinct cause of action …. It is a well- settled principle that continuous injuries to land caused by the maintenance of tortious acts create separate causes of action barred only by the running of the statute of limitation against each successive acts.
we reach the inescapable conclusion that the appeal fails and is hereby dismissed with costs to the respondents. Orders accordingly.
Issues in the judgment
#The case title and case number are not expressly stated in the extract; party names must be inferred from the record.
The judgment records the ruling date as 14th December 2021 but submissions in the trial court are dated as late as 23rd February 2022, an internal chronological inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vaz v Oyatsi & 2 others (Civil Appeal E035 of 2022) [2025] KECA 251 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/251/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.