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ELCOther· [2026] KEELC 1701 (KLR)

Njunguna & 20 others v Mbukoni Holdings Limited & another (Environment and Land Case E004 of 2025) [2026] KEELC 1701 (KLR)

Environment and Land Court
25 March 2026
1,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos dismissed a claim that a land suit was filed too late, ruling that when the buyer discovered the problem must be decided at trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Matheka J) on a preliminary objection raised by the 2nd Defendant seeking dismissal of the Notice of Motion dated 27/06/2025 and the entire suit with costs. The objection was on three grounds: that the suit and application were time barred under the Limitation of Actions Act, Cap 22; that the suit was incompetent, bad in law and an abuse of process; and that the court lacked jurisdiction over a statutorily time-barred suit. The plaintiff had sued over sale agreements for plots in property known as LR No. 12715/127, alleging payment of the purchase price and taking of possession without transfer of ownership, with an alternative claim of adverse possession. The court restated the classic definition of a preliminary objection from Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd and held the objection was properly before it since such objections may be raised at any time before the final conclusion of the case. On limitation, the court applied Section 7 (twelve years for recovery of land) and Section 4(1) (six years for contract), but held that when the plaintiff discovered the breach of contract, or would have discovered fraud under the proviso to Section 26(a), is a matter of fact to be ascertained at trial. Relying on Justus Tureti Obara v Peter Koipetai Nengisoi, the court found the suit not time barred, dismissed the preliminary objection, and awarded costs to the plaintiff. The main suit remains for trial.

Key legal issues

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01

Whether the suit is time barred under Sections 7 and 4(1) of the Limitation of Actions Act

Holding

The suit is not time barred; when the plaintiff discovered the breach of contract or that ownership would not pass is a matter of fact to be ascertained at trial, so the limitation bar cannot be resolved on a preliminary objection

Reasoning

The 2nd Defendant argued the suit was barred under Section 7 (12 years for land recovery) and Section 4(1) (6 years for contract). The court noted the plaintiff paid the purchase price as late as 2009 and took possession, and where fraud or the date of discovery of breach is alleged, the proviso to Section 26(a) postpones the start of the limitation period. Since ascertaining when the plaintiff discovered the breach or fraud requires evidence, a preliminary objection on a pure point of law was not competent.

p. 4
02

Whether the 2nd Defendant's preliminary objection was properly before the court

Holding

The preliminary objection was properly brought before the court as it may be raised at any time before the final conclusion of the case

Reasoning

The court accepted the definition of a preliminary objection from Mukisa Biscuits and Attorney General v Andrew Mwaura Githinji, holding that such an objection may be raised at any time before final conclusion of the case, ideally at the earliest opportunity to smooth case management. On that basis it found the 2nd Defendant's objection properly brought, even though it ultimately failed on its merits.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised
  • Where the date on which a cause of action accrued, including discovery of fraud under the proviso to Section 26(a) of the Limitation of Actions Act, is in dispute, the issue cannot be resolved on a preliminary objection but must be ascertained at trial
  • A preliminary objection can be brought at any time before the final conclusion of the case, though ideally at the earliest opportunity
  • A suit barred by limitation is barred by law and the court cannot grant the relief sought

Court orders

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  1. 1.The preliminary objection by the 2nd Defendant is dismissed
  2. 2.The preliminary objection is dismissed with costs
  3. 3.It is so ordered
Jurisdiction invoked
Original civil jurisdiction over the suit; the court exercised its inherent and statutory jurisdiction to determine a preliminary objection raised under the Limitation of Actions Act, Cap 22

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njunguna & 20 others v Mbukoni Holdings Limited & another (Environment and Land Case E004 of 2025) [2026] KEELC 1701 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1701/eng@2026-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.