Owegi v Okubo & another

2. The Appellant averred that the registration of the suit property in the name of the 1st Respondent and the subdivision of the property into three portions were carried out by the 1st Respondent illegally and fraudulently without the consent of the Appellant, with the connivance of the 2nd Respondent. The Appellant pleaded several particulars of fraud against the Respondents. The Appellant sought judgment against the Respondents jointly and severally for an order cancelling the subdivision of the suit property into Title Nos. Kisumu/Ojola/5059, 5060, and 5061, and restoring the property, a permanent injunction restraining the Respondents from interfering with the suit property in any way, mesne prots, costs, and interest. 3. The 1st Respondent led a statement of defence in the lower court on 28th May 2021. The 1st Respondent denied the Appellant’s claim in its entirety. The 1st Respondent averred that he was the registered owner of the suit property and its subdivisions, Title Nos. Kisumu/Ojola/5059, 5060, and 5061. The 1st Respondent averred that the Appellant’s suit was an attempt by the Appellant to renege on and frustrate the agreement of sale of the suit property that the parties entered into in 1983. The 1st Respondent averred that he acquired the suit property lawfully and procedurally. The 1st Respondent denied that he acquired the property illegally and fraudulently in collusion with the 2nd Respondent. The 1st Respondent averred that the Appellant’s suit was time-barred pursuant to the provisions of Section 4 of the Limitation of Actions Act, Chapter 22 Laws of Kenya. 4. The Appellant led a reply to defence on 10th June 2021, in which he joined issue with the 1st Respondent in his defence. The Appellant denied that its plaint disclosed no cause of action and that the same was time-barred as claimed by the 1st Respondent. 5. On 3rd March 2023, the 1st Respondent led a Notice of Preliminary Objection in which he contended that the Appellant’s suit was time-barred pursuant to the provisions of Section 4 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, and that the suit was incompetent, bad in law, and an abuse of the process of the court. On 10th March 2023, the 1st Respondent led an application by way of Notice of Motion dated 9th March 2023, supported by the adavit of his advocate Richard Onsongo, seeking an order that the Appellant’s suit be struck out on the ground that the suit was time-barred. The application was brought under Sections 4(1)(a) and 7 of the Limitations Act. The 1st Respondent averred that the Appellant sold to him the suit property in January 1983, and on 6th January 1983, the suit property was transferred and registered in his name. The 1st Respondent averred that the Appellant’s suit was brought about 40 years after the property was sold and registered in the name of the 1st Respondent. The 1st Respondent averred that to the extent that the suit was brought to enforce the contract of sale of land, the same was barred under Section 4 (1) of the Limitation of Actions Act, and to the extent that it was for the recovery of the suit property, it was time-barred under Section 7 of the Limitation of Actions Act. The 1st Respondent averred that the suit could not be saved through an amendment. The 1st Respondent’s application was heard by way of written submissions. In his submissions, the 1st Respondent reiterated that the suit was time-barred under the provisions of Sections 4(1) and 7 of the Limitation of Actions Act. On his part, the Appellant submitted that the application did not meet the threshold for striking out a suit. The Appellant submitted that in his plaint, he had claimed that the 1st Respondent had fraudulently and illegally transferred the suit property into his name and proceeded to subdivide it. The Appellant submitted that his cause of action arose when he discovered the 1st Respondent’s acts of fraud, and not when the agreement between him and the 1st Respondent was made or when the suit property was registered in the name of the 1st Respondent. The Appellant submitted that his plaint raised serious triable issues which should be tried. The Appellant prayed that he be given his day in court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18514/eng@2025-12-17 2

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6. In a ruling delivered on 5th June 2024, the lower court determined the 1st Respondent’s Preliminary Objection dated 2nd March 2023 instead of the 1st Respondent’s Notice of Motion application dated 9th March 2023, which was argued by the parties. The lower court found that since the Appellant had admitted in paragraph 5 of his amended plaint that he sold a portion of the suit property to the 1st Respondent in January 1983, the Appellant’s suit against the 1st Respondent after almost 40 years was time-barred under both Section 4(1) and Section 7 of the Limitation of Actions Act. The lower court found further that since the suit was time-barred, the court had no jurisdiction to hear it. The lower court held that the suit was an abuse of the court process and dismissed it with costs to the Defendant. 7. The Appellant was aggrieved by the decision of the lower court and preferred the present appeal. In his Memorandum of Appeal dated 1st July 2024, the Appellant challenged the lower court’s ruling on the following grounds; 8. 1. That the learned trial magistrate erred in law and fact by nding that the court lacked jurisdiction to try the suit that was before it. 2. That the learned trial magistrate erred in law and fact in failing to nd that the Appellant’s claim against the 1st Respondent concerned fraudulent registration of the suit property in the name of the 1st Respondent, and as such, whether or not the suit was time-barred depended on when the Appellant discovered the fraud rather than the date when the agreement of sale between the parties was made. 3. That the learned trial magistrate erred in law and fact in ruling on the notice of preliminary objection dated 2nd March 2023, when the matter that was before him and in respect of which the parties had led written submissions was the 1st Respondent’s Notice of Motion application dated 9th March 2023. The Appellant prayed that the appeal be allowed and the ruling of the lower court be set aside, and in place thereof, an order be made dismissing the 1st Respondent’s Notice of Motion application dated 9th March 2023. The Appellant also prayed for the costs of the appeal. The appeal was heard by way of written submissions. The Appellant led submissions dated 3rd October 2025, while the 1st Respondent led submissions dated 6th October 2025. Analysis and determination 9. I have considered the pleadings and the proceedings of the lower court, the ruling of the court, the grounds of appeal led by the Appellant, and the submissions by the parties. In my view, the appeal raises only two issues for determination, namely, whether the lower court erred in ruling on a notice of preliminary objection that was not before it, and secondly, whether the lower court erred in upholding the preliminary objection. As I have stated earlier in the ruling, the 1st Respondent led a Notice of Preliminary Objection and a Notice of Motion application dated 9th March 2023, in which he raised the issue that the Appellant’s suit was time-barred and, as such, should be struck out. From the proceedings, the 1st Respondent’s advocates disclosed that he was not comfortable proceeding with the Notice of Preliminary Objection as the issue he had raised required facts, and as such could not be determined through a preliminary objection. The Appellant led the Notice of Motion application dated 9th March 2023, so that he could support his preliminary objection with facts. After ling the application, the 1st Respondent was urged to withdraw the Notice of Preliminary Objection, but he was adamant. The court record is clear that what the court gave directions on was the 1st Respondent’s Notice of Motion application dated 9th March 2023, and it was in respect of this application that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18514/eng@2025-12-17 3

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advocates for the parties led written submissions. The lower court was therefore supposed to rule on the application rather than the Notice of Preliminary Objection. In the circumstances, I agree with the Appellant that the lower court erred in ruling on the Notice of Preliminary Objection that was not before it. 10. Assuming that the Notice of Preliminary Objection was properly before the lower court, did the court err in allowing it? In Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others (2014) eKLR, the Supreme Court stated as follows on preliminary objections: “ To restate the relevant principle from the precedent setting case, Mukisa Biscuit Manufacturing Co. Ltd. Vs West End Distributors (1969) EA 696. ‘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 parties are bound by the contract giving rise to the suit to refer the dispute to arbitration …a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion.” 11. In Oraro v. Mbaja[2005]1KLR141, the court stated that: “ A preliminary objection correctly understood is a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not as a matter of legal principle, a true preliminary objection which the court should allow to proceed.” 12. I agree with the Appellant that the 1st Respondent’s preliminary objection to the lower court suit had no merit. It is not disputed that the suit property was registered in the name of the Appellant as the rst registered owner on 21st July 1978. The suit property was transferred to the 1st Respondent on 6th January 1983, and its title was closed upon subdivision into Title Nos. Kisumu/Ojola/5059, 5060, and 5061 on 23rd September 2014. The Appellant’s case, as pleaded in the lower court was that he only sold to the 1st Respondent a portion of the suit property measuring 0.06 of a hectare. The Appellant averred that he never applied and obtained the consent of the Land Control Board for the transaction and did not transfer the suit property to the 1st Respondent. The Appellant averred that for over 38 years after he entered into the said agreement for sale with the 1st Respondent, the 1st Respondent did not come back to him on the transaction. The Appellant averred that it was not until December 2020 that the 1st Respondent came to the suit property and fenced three portions thereof separately that he learnt that the 1st Respondent had transferred the whole land to his name and had proceeded to subdivide it into three portions. The Appellant averred that the transfer of the whole of the suit property to the 1st Respondent and the subsequent subdivision thereof into three portions was carried out by the 1st Respondent illegally and fraudulently in collusion with the 2nd Respondent. 13. The Appellant’s suit was not seeking the enforcement of the contract of sale that the Appellant entered into with the 1st Respondent in January 1983. The issue of the claim being time-barred on that account under Section 4(1) of the Limitation of Actions Act could not, therefore, arise. I agree with the 1st Respondent that the Appellant is seeking the recovery of the suit property from him and that a suit for the recovery of land should be brought within 12 years from the date of the cause of action. However, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18514/eng@2025-12-17 4

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Section 26 of the Limitation of Actions Act provides that where the claim is based on fraud or mistake, the limitation period does not run until the fraud or mistake is discovered. The Appellant claimed that the transfer of the suit property to the 1st Respondent was fraudulent. The Appellant pleaded that he discovered the fraud in December 2020 and led the lower court on 24th May 2021. I agree with the submission by the Appellant that whether or not the Appellant’s lower court suit was time-barred depended on when the Appellant discovered the alleged fraud, and that issue could only be determined at the hearing of the suit, and not through a preliminary objection. It is therefore my nding that the 1st Respondent’s preliminary objection was wrongly taken, and should have been dismissed by the lower court. Conclusion 14. In conclusion, I nd merit in the Appellant’s appeal and make the following orders: 1. The ruling and orders made by the lower court on 5th June 2024 allowing the 1st Respondent’s preliminary objection dated 2nd March 2023 and dismissing the Appellant’s suit are set aside and substituted with an order dismissing the 1st Respondent’s said preliminary objection with costs to the Appellant. 2. The Appellant shall have the costs of the appeal. 3. The lower court shall proceed to hear and determine the lower court suit on merit. DELIVERED AND SIGNED AT KISUMU ON THIS 17TH DAY OF DECEMBER 2025. S. OKONG’O JUDGE Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of: Ms. Atieno for the Appellant Mr. Onsongo for the Respondent Ms. J. Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18514/eng@2025-12-17 5

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