Jamin Wephukulu & Others v Respondent

The court applied the Mukisa Biscuits definition, reinforced by Attorney General v Andrew Mwaura Githinji, that a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. The objection on limitation and res judicata involved factual inquiry, but the locus standi point was determinative on the pleadings themselves, as the applicants sued on behalf of a deceased's estate without a grant.

Although the parties were more or less the same across the prior tribunal, High Court and Court of Appeal matters, the court perused the proceedings and found the prior litigation concerned Land Parcel Bokoli/Chwele/1092 (subdivided from Bokoli/Chwele/253), whereas the present suit concerns Bokoli/Chwele/250. The subject matter therefore differed and section 7 of the Civil Procedure Act was not offended.

The respondent argued the claim, relating to a father who died in 1980, exceeded the 12-year limit. The court noted the plaint alleges the respondent fraudulently and unprocedurally acquired title. Section 26 provides that where an action is based on fraud, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud. Hence the claim was not time barred.

The applicants claim a share of land belonging to their late father. The court held that as pleaded, any share would vest in the estate, not in the applicants personally, so they required a grant of letters of administration under the Law of Succession Act, citing George Mbiti Kiebia v Isaya Theuri M'lintari. Having none, they lacked the capacity to institute the suit, which was fatal and rendered the other issues unnecessary to determine.