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ELCDismissed· [2026] KEELC 2143 (KLR)

Mbita (Suing as the Administrator of Mole Mbita Angore Deceased) v Frann Investments Limited & 2 others; Kombe (Interested Party) (Environment and Land Case E063 of 2022) [2026] KEELC 2143 (KLR)

Environment and Land Court
14 April 2026
2,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner cannot get a land claim thrown out as 'too late' before trial when fraud is alleged, because when the fraud was discovered must be tested with evidence.

What this practically means

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Executive summary

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The 1st defendant, David Mwangi Wahome, brought a Notice of Motion dated October 22, 2025 seeking to strike out or dismiss the plaintiff's plaint of November 3, 2022 as time-barred under Section 7 of the Limitation of Actions Act, Cap 22, and for want of jurisdiction. He showed that the suit property, Plot No. Kilifi/Mtwapa/99, was registered in his name on April 26, 2007, and that suit was filed on November 3, 2022 - 15 years and 7 months later - arguing that under Sections 7 and 17 the plaintiff's title had been extinguished, tracing the family's loss to the 1994 transfer. The respondent opposed, contending that her cause of action accrued in June 2021 when an official search revealed fraudulent transfers, invoking Section 26 which postpones limitation until discovery of fraud. E. K. Makori J framed two issues: whether the suit should be dismissed for lack of jurisdiction arising from limitation, and costs. The court reaffirmed the Lillian S and Phoenix jurisprudence on jurisdiction but held that where fraud is pleaded and the date of discovery is disputed, limitation is a matter for trial on evidence, not a summary application. The court found no answer to the plaintiff's assertion of when the fraud was discovered, declined to strike out the plaint on DT Dobie principles, and dismissed the application with costs on April 14, 2026.

Key legal issues

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01

Whether the suit is statute-barred under Section 7 of the Limitation of Actions Act

Holding

Although the claim would ordinarily be time-barred under Section 7 (12 years for recovery of land), the plaintiff pleaded fraud, engaging Section 26, which postpones the start of limitation until discovery of the fraud

Reasoning

The applicant showed registration of the suit property on April 26, 2007 and filing of suit on November 3, 2022, exceeding 12 years. However, the plaint alleges fraudulent transfers, and Section 26 provides that limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud. The plaint does not disclose the date of discovery, and the respondent asserts discovery in June 2021 after an official search.

p. 5
02

Whether limitation can be determined summarily on an application to strike out

Holding

No - where fraud is alleged and the date of discovery is disputed, limitation must be determined at trial on evidence

Reasoning

Relying on Murichu v Mwaniki, Justus Tureti Obara, Sichuan Huashi and Oruta v Nyamato, the court held that limitation is a matter for trial where the date of discovery of fraud is in issue. The certificate of confirmation of grant of October 12, 2022 and the circumstances of discovery could not be resolved on an application but required a hearing.

p. 4
03

Whether the court should strike out the plaint

Holding

No - striking out is draconian and reserved for the clearest of cases; the plaint raises triable issues

Reasoning

Applying the DT Dobie principle as restated in Mathew Adams Karauri v Zablon Mathenge Itewa, the court reiterated that its core duty is substantive justice; striking out divests a party of a hearing and should be used sparingly, only where the pleading is demurrable beyond redemption. A triable issue on the discovery of fraud existed.

p. 5

Legal principles established

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  • A court must down tools the moment it finds it lacks jurisdiction
  • Limitation of time, where fraud is alleged, is a matter for determination at the trial on evidence, not a preliminary point
  • The power to strike out a pleading should be used sparingly and only on the clearest of cases

Court orders

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  1. 1.The applicant's Notice of Motion dated October 22, 2025 is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (statutory jurisdiction under the Limitation of Actions Act, Cap 22 invoked in the application)

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, "Mbita (Suing as the Administrator of Mole Mbita Angore Deceased) v Frann Investments Limited & 2 others; Kombe (Interested Party) (Environment and Land Case E063 of 2022) [2026] KEELC 2143 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2143/eng@2026-04-14

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