Mbori & another v Oria (Being the Legal representative of the Estate of the late Chrysanthus Onyuka)

6. Accordingly, the plaintis’ counsel led submissions dated 26th October 2022 on 9th November 2022. Counsel submitted that the sale agreement in contention forms part of the evidence that the plaintis intend to use to demonstrate how they came into possession of the suit land. That further, the plaintis are not seeking orders for specic performance and enforcement of the said sale agreement dated 17th March 1985 but have asked the court to determine, among others, whether the plaintis have an interest in the suit land enforceable by way of constructive trust and/or whether the plaintis have become the owners of the suit land by way of adverse possession. Thus, counsel urged the court to dismiss the Notice of Preliminary Objection with costs. 7. On the part of the defendant, his counsel led submissions dated 14th October 2022 on 14th November 2022. Counsel submitted, inter alia, that the suit is an afterthought, brought not in good faith and led out of time as stipulated by Section 4(1) (supra). That therefore, this court is devoid of jurisdiction over this suit which should be struck out with costs to the defendant. Counsel relied on Mukisa Biscuits case (infra), Rawal –vs- Rawal (1990) KLR 275 and Owners of Motor Vessel “Lillian S” –vs- Caltex (K) Ltd. (1989) eKLR, in support of the submissions. 8. It is noteworthy that, by way of originating summons dated 8th October, 2019 and led herein on 15th October 2019, the plaintis, through M/s Gordon Ogola, Kipkoech & Company Advocates, are seeking the following reliefs: a. A declaration be and is hereby issued that the Estate of the late Chrysanthus Onyuka holds a portion measuring 120ft by 120ft in all that property known as West Kasipul/Kasimba/474 (the suit land herein) in trust for the plaintis. b. In the alternative, the plaintis have become entitled by adverse possession to the suit land. c. The Deputy Registrar of the honourable court does execute all necessary documents to facilitate registration of the plaintis as the proprietors of the suit land. d. An order directing the Migori District Land Registrar to rectify the title by cancelling the registration of Chrysanthus Onyuka as the proprietor of the plaintis and substituting Chrysanthus Onyuka with the plaintis. e. Costs of the suit be awarded to the plaintifs. 9. The plaintis’ contention is that they acquired the suit land from the late Chrysanthus Onyuka on 17th March 1985. That the said vendor died before transferring the suit land to the plaintis. That the defendant has since taken out letters of administration in respect of the estate of the deceased and has sought eviction orders against the plaintis. That in any event, the plaintis have been in open, exclusive and uninterrupted use of the suit land for a period exceeding twelve years. 10. The suit was opposed by the defendant, through Ojienda and Company Advocates, who led a Notice of Preliminary Objection dated 22nd October 2019. The same was dismissed for want of merit by a ruling delivered by this court on 27th February 2020. The defendant’s counsel then lodged the instant Notice of Preliminary Objection. 11. Further, the defendant led a Replying Adavit and witness statement both dated 28th January, 2022 on 14th February, 2022. The defendant averred that the portion of land measuring 120ft by 120ft in L.R No. West Kasipul/Kasimba/474 belongs to the Estate of Chrysanthus Onyuka (deceased) and not to the plaintis. That in any event, the plaintis’ claim is time-barred pursuant to Section 4(1) of the Limitation of Actions Act (supra). https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14747/eng@2022-11-14 2

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12. I have duly considered the Preliminary Objection, the respondent’s response thereto and the parties’ respective pleadings and submissions. So, is the Preliminary Objection sustainable? 13. It must be noted that the Preliminary Objection is on a point of law and may dispose of the suit; see Mukisa Biscuits case (infra). 14. The Preliminary Objection is grounded on Section 4(1) (supra) which provides thus: 15. 1. The following actions may not be brought after the end of six years from the date on which the cause of action accrued— a. actions founded on contract; b. actions to enforce a recognizance; c. actions to enforce an award; d. actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture; e. actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law. In the locus classicus case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696 the Court of Appeal pronounced itself on what constitutes a preliminary objection as follows: “ …a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration…” 16. On one hand, the defendant contends that the plaintis’ suit is for enforcement of a sale agreement purportedly executed on 17th March 1985. That the same is statute-barred by dint of the provisions of Section 4 (1) (a) (supra). 17. On the other hand, plaintis’ counsel submitted that the sale agreement in contention forms part of the evidence that the plaintis intend to rely on to demonstrate how they came into possession of the suit land. That further, the plaintis are not seeking orders for specic performance and enforcement of the said sale agreement but have asked the court to determine, among others, whether the plaintis have an interest in the suit land enforceable by way of trust and/or adverse possession. 18. Further, the plaintis are not relying on part performance doctrine which is not pleaded in the suit; see Sumaria & another v Allied Industries Limited [2007] 2KLR 1. 19. Basically, the plaintis rely on some overriding interests including trust and adverse possession as provided for under Section 28 of the Land Registration Act, 2016 (2012). 20. Indeed, the orders sought by the plaintis in the originating summons dated 8th October, 2019 and led herein on 15th October 2019 and as listed in paragraph 8 hereinabove, do not include an order for specic performance of the sale agreement dated 17th March 1985. Also, no part performance claim is laid thereon as noted in Sumaria case (supra). https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14747/eng@2022-11-14 3

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21. In the circumstances, this court is persuaded by the plaintis’ contention. It is my considered view that Section 4 (1) (a) of the Limitation of Actions Act, Chapter 22 Laws of Kenya does not come into play in this suit. 22. In view of the foregoing, it is the nding of this court that the respondent’s preliminary objection is unmeritorious. Therefore, the same fails. 23. The upshot is that I hereby order and direct that the Preliminary Objection dated 15th June 2022 and led in court on 6th July 2022, be and is hereby dismissed with costs in the cause. 24. It is so ordered. VIRTUALLY DELIVERED, DATED AND SIGNED AT HOMA-BAY THIS 14TH DAY OF NOVEMBER 2022. G.M.A ONG’ONDO JUDGE Present Mr. Ouma holding brief for Mr. Ogola, learned counsel for the plaintis Mr. Ojienda, learned counsel for the defendant Angela and Fiona- Court Assistants https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14747/eng@2022-11-14 4

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