Opere (Suing as the Administrator of the Estate of Opere Lila, Deceased and on Behalf of the Beneficiaries of the Said Estate) v Ondere & 30 others (Environment and Land Case E019 of 2026) [2026] KEELC 5096 (KLR)

The Plaintiff alleges fraud committed after adjudication concluded, concealment until May 2023, and obstruction of administrative remedies. Determining participation, notice and fraud requires examination of adjudication records, registers, mutation forms and oral evidence, which falls outside the scope of a preliminary objection. Exhaustion is not absolute where the remedy is unavailable, ineffective or illusionary.

Section 4(2) of the Limitation of Actions Act requires tort actions to be brought within three years. The Defendants place the cause of action between 2011 and 2018; the Plaintiff pleads concealment until 25th May 2023. Whether discovery occurred in 2023, or ought reasonably to have occurred earlier, and whether the fraud exceptions apply, are factual questions requiring evidence.

The Plaint alleges fraud, collusion, unlawful subdivision, abuse of statutory power and unconstitutional deprivation of property. Whether those allegations are ultimately proved is for trial, and the Court cannot determine the point without examining evidence.

Res judicata and forum shopping require examination of the pleadings, proceedings and judgment in the previous suit together with the evidence in the present proceedings. The Court compared the pleadings and found material averments in paragraphs 15, 16 and 36 of the present Plaint distinguishing it from the earlier suit, and elected to determine the objection on the present pleadings.