Mathonye (Suing as the administrator and legal representative of the Estate of Agai Aboka) v Nyaosi & 4 others (Environment and Land Appeal E064 of 2025) [2026] KEELC 4706 (KLR)

The court applied the Mukhisa Biscuits test: a preliminary objection must be a pure point of law assuming the truth of all facts pleaded. Here, determining when the cause of action accrued - whether in 1982 on the death of Agai Aboka, or when the fraud was discovered - was a factual issue requiring evidence. A preliminary objection depending on disputed facts or factual information to be tested by the normal rules of evidence falls outside the threshold and cannot dispose of a suit in limine.

The appellant pleaded in paragraph 10 of the Plaint that he discovered the fraud in April 2024. Relying on section 26(b) of the Limitation of Actions Act and authorities including Kenya Ports Authority v Timberland and Justus Tureti Obara v Peter Koipeitai, the court held that a suit founded on pleaded fraud with a pleaded date of discovery within the limitation period is not time barred, so the trial magistrate erred in upholding the preliminary objection.

Having found merit in the appeal, the court exercised its appellate powers to allow the appeal, dismiss the preliminary objection dated 18.02.2025, and reinstate the suit for hearing on a priority basis before a magistrate other than Hon. G.N. Barasah (SRM), who had issued the impugned ruling. Costs of the appeal and the preliminary objection were awarded against the 3rd Respondent, who had raised the successful preliminary objection before the trial court.