Kavivya v Kavivya & 3 others (Environment and Land Case E242 of 2025) [2026] KEELC 1848 (KLR)

Plaintifi ’s Response 3. The plaintifi in objecting to the notice of preliminary objection filed grounds of objection dated 20th August 2025 which grounds were anchored on the provision of section 26 of the Limitation of Actions Act raising a defence of fraud in regards to the transfer of the suit property and concealment of facts 4. That the court should extend time to the defendant to file a defence having established fraud on the part of the plaintifi. The plaintifi also filed a supplementary afidavit dated 21st August 2015 reiterating the contents in her supporting afidavit. The notice of preliminary objection was dispensed ofi by way of written submissions with the plaintifi and 4th defendant being the only parties filing their submissions. Plaintifi ’s Submissions 5. The plaint submitted that section 26 of th limitation of Action Act provided for an extension of the limitation period where fraud or mistake is proved. She further submitted that section 4(1) as invoked by the 4th defendant was not applicable in this case as there had been no contract as between the plaintifi and both the 1st and 4th defendants herein and the cause of action cannot arise in this case. Counsel relied on the case of DT Dobbie & Company (Kenya0Limited v Joseph Mberia Muchina & Another (1980) eKLR She deponed that neither of the parties will be prejudiced with the extension of time as the sale never happened since the defendants have not produced any documentary evidence to show that monies exchanged hands further proving that fraud was at the root of the allegedly transfers. 4th Defendant’s Submissions The 4th defendant in backing up his preliminary objection relied in the case No 49 of 2018 Nyahururu Edward Moonge Lengusuranga v James lanainyara and 2 others pointing out to the fact that the court had no jurisdiction to entertain a claim that had been statue barred. Analysis and Determination 6. Having considered the Preliminary objection and the submissions herein the only issue for determination is whether the Notices of Preliminary Objection dated 9th July 2025 is merited .The threshold of a preliminary objection was set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as follows:“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. “The Court went further to note that: -“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 the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.’’ The preliminary objection in this matter is founded on the notion that the suit is time barred as per Section 4(1) and 7 of the Limitations of Actions Act which goes into the issue of jurisdiction of the court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1848/eng@2026-03-25 2

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Section 4(1)(a) of the Limitation of Actions Act, Cap 22, provides that: “Actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued.” Section 7 reads “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.’ 7. It goes without saying that without the requisite jurisdiction a court of law down sits tools meaning that the objection, if successful, is capable of finally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law. The applicant has submitted that section 4(1) of the Limitations of Actions Act does not apply as she was not party to the contract executed on 15th October 2001 and I agree hence will not rely on it. 8. From the record, the right of action accrued on 18th February 2003, when the 4th defendant was registered as proprietor as per the certificate of lease. On a strict computation, twelve years expired on 18th February 2015. The plaintifi’s suit filed in May 2025 came twenty-two years after the accrual of the cause of action. 9. The purpose of the Law of Limitation was stated in the case of Mehta v Shah [1965] EA 321, as follows;“ The object of any limitation enactment is to prevent a Plaintif from prosecuting stale claims on the one hand, and on the other hand protect a Defendant after he has lost evidence for his defence from being disturbed after a long lapse of time. The efiect of a limitation enactment is to remove remedies irrespective of the merits of the particular case.” Similarly, in Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104, the Court of Appeal held as follows; “ …The Law of Limitation of Actions is intended to protect Defendants against unreasonablee delay in the bringing of suits against them. The statute expects the intending Plaintfi to exercise reasonable diligence and to take reasonable steps in his own interest 10. The plaintifi however invokes section 26 of the statute of Limitation Act that provides as follows ‘Extension of limitation period in case of fraud or mistake. Where, in the case of an action for which a period of limitation is prescribed, either— 11. a. The action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; b. The right of action is concealed by the fraud of any such person as aforesaid; c. The action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintifi has discovered the fraud or the mistake or could with reasonable diligence have discovered it. Contending that the cause of action is based on fraud and that time did not begin to run until she discovered the fraud in 2023. I have perused the Plaint in detail. The Plaintfi indeed pleads fraud in paragraphs 14, particularizing the alleged irregular sale and unlawful registration of title in the 4th Defendant’s name. Despite this discovery, the Plaintifi filed the instant suit only on 11th May 2025 a delay of two years. Courts have consistently held that Section 26 does not suspend limitation indefinitely; it only defers the starting point until discovery. In Edward Moonge Lengusuranga v James Lanaiyara & Another [2019] eKLR, the Court struck out a suit filed beyond three years after discovery of fraud, holding that “Section 26 defers, but does not indefinitely suspend, the running of time.” The https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1848/eng@2026-03-25 3

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Court of Appeal in Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] eKLR reiterated that “equity aids the vigilant, not the indolent.” 12. The question of limitation is not a mere technicality but goes to the jurisdiction of the Court. As held in Bosire Ongero v Royal Media Services [2015] eKLR, limitation “touches on the jurisdiction of the court, which means that if a matter is statute-barred, the court would lack jurisdiction to entertain it.” The Court of Appeal in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 famously stated: “Jurisdiction is everything; without it, a court has no power to make one more step.” 13. Accordingly, whether time is reckoned from the date of registration of the 4th Defendant’s title in 2003 under Section 7, or from the date of discovery of fraud in 2023 under Section 26, the limitation period had long expired by May 2025. The suit is therefore statute-barred, and this Court lacks jurisdiction to entertain it. Final Disposition 14. The upshot of the above is that the Preliminary Objection dated 9th July 2025 is upheld. I therefore order that the Plaintfi’s suit dated 14th May 2025 be struck out in its entirety for being time-barred under Section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF MARCH, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Saus for the Plaintifi Mr. Omondi for the 1st Defendant Mr. Mathenge for the 2nd and 3rd Defendants Philomena Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1848/eng@2026-03-25 4

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