Lmk Investment Limited & another v Oyopudo & 2 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 388 (KLR)

The Plaintiffs pleaded fraud in several paragraphs and particularised it in paragraph 15 of the Plaint. They were not the owners of, and had no relationship with, the suit parcels in 2012/2013 when the fraud was committed, so they could not have discovered it then. The claim was governed by the fraud proviso to the Limitation of Actions Act, which starts time running on discovery of the fraud. The suit having been filed within three years of discovery was not statute barred; the trial magistrate erred in treating it as a contract claim under Section 4.

A preliminary objection must rest on a point of law discerned from the pleadings alone. The learned magistrate had correctly restated the Mukisa Biscuit test but then relied on the Plaintiffs' alleged concession in their Replying Affidavit that the limitation objection had merit. That was material outside the pleadings and the law, vitiating his approach on that aspect, although this error alone did not render the entire decision wrong.

The court restated the settled principles from Selle, Mbogo v Shah, Supermarine Handling and other authorities: a first appellate court re-evaluates the evidence and draws its own conclusions, while allowing for the advantage the trial court had; where the decision below rests on discretion, interference is only warranted where it was exercised injudiciously or on wrong principles. Applying these, the court found the magistrate plainly wrong on the cause of action and set the dismissal aside.