Chepkwony & another v Chepkwony & another & 8 others (Enviromental and Land Originating Summons E014 of 2024) [2025] KEELC 7001 (KLR)
The bottom line
#A Kericho land court struck out a family's fraud claim over ancestral land because fraud cannot be decided through an originating summons.
What this practically means
#Executive summary
#Key legal issues
#Whether the ground that succession proceedings were commenced in Kericho HC Succession Cause No. 33 of 1993 can be determined as a preliminary objection
No - the Applicants deny such proceedings were filed while the Respondents contend they were, making it a question of fact not of law.
The Applicants pleaded in the Originating Summons that the parcel was subdivided without succession proceedings. The Respondents disputed this pleaded fact by asserting succession proceedings were filed. Since the Respondents were disputing facts as pleaded by the Applicants, the court held the existence of the succession proceedings was a question of fact requiring evidence and could not ground a preliminary objection.
Whether the suit is statute barred under Section 7 of the Limitation of Actions Act
Yes - the cause of action arose on 22nd October 1998 and the suit filed in 2024 was twenty-six years later, so it is statute barred; the fraud exception was not demonstrated.
The court found the cause of action arose on 22nd October 1998 as pleaded in the affidavit of the 2nd Applicant. Section 7 bars suits for recovery of land brought twelve years after the cause of action. The Applicants claimed fraud as an exception but failed to show how it applies. The court nonetheless reasoned that limitation could not be dealt with as a preliminary objection where facts must be ascertained, but proceeded to find the suit statute barred on the pleaded dates.
Whether res judicata can be raised by preliminary objection
No - res judicata requires interrogation of pleadings in the former suit and cannot be raised as a preliminary objection.
Relying on Henry Wanyama Khaemba v Standard Chartered Bank Ltd and George Kamau Kimani v County Government of Trans-Nzoia, the court held that res judicata requires probing of evidence and annexed pleadings from the former suit, properly raised by notice of motion rather than preliminary objection. The Applicants also contested whether Kericho HC Succession Cause No. 33 of 1993 was concluded, a factual dispute.
Whether allegations of fraud can be determined by way of Originating Summons under Order 37
No - Order 37 does not permit determination of fraudulent transfer of land by originating summons; the objection on this ground was upheld.
Order 37 Rule 1 permits executors and administrators to take out an originating summons for specified questions arising in administration of estates, but fraudulent transfer of land of a deceased person is not among them. Fraud must be specifically pleaded and distinctly proved, requiring viva voce evidence and cross-examination; the originating summons was therefore not the proper procedure.
Whether the court should rule on the amendment of the Originating Summons without leave and the suing of deceased persons
No - the issue was not raised in the preliminary objection but only in submissions; new issues in submissions are best ignored.
The Respondents argued the Applicants sued deceased persons and then amended the Originating Summons without leave, seeking to have the amendment struck out as a nullity. The court noted this ground was not part of the preliminary objection dated 9th December 2024, and relying on the Zapkass Consulting case, declined to make a finding on issues introduced only through submissions.
Legal principles established
#- A preliminary objection raises a pure point of law which cannot be sustained if it requires ascertainment of facts or exercise of judicial discretion.
- The defence of limitation of time cannot be determined as a preliminary objection but must be decided at trial on evidence.
- Res judicata cannot be raised by way of preliminary objection since it requires interrogation of pleadings in the former suit.
- Fraud must be specifically pleaded and distinctly proved and cannot be left to be inferred from facts.
- New issues raised by way of submissions are best ignored as submissions are not pleadings.
- A suit for recovery of land cannot be brought twelve years after the cause of action arose.
Court orders
#- 1.The 3rd, 4th, 5th and 6th Respondents' Preliminary Objection dated 9th December 2024 is upheld on the ground that fraud cannot be determined by way of Originating Summons
- 2.The Applicants' suit is struck out with costs
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court jurisdiction); Article 48 cited by Applicants on technicalities of justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkwony & another v Chepkwony & another & 8 others (Enviromental and Land Originating Summons E014 of 2024) [2025] KEELC 7001 (KLR)", Case Analysis (2025). Originating Summons dated 5th August 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7001/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.