Seet (Suing as Legal Representative of the Estate of John Seet Masoon Kasua) v Okwomi & 3 others (Environment and Land Case E012 of 2025) [2026] KEELC 2214 (KLR)

Kaputiei-North/2065, to the 1st Defendant in 2009, and twelve (12) years after the conclusion of probate and administration proceedings regarding the estate of the deceased, John Seet Masoon Kasua. 3. Consequently, the Applicant contends that the Administrator/Plaintifi failed to exercise his mandate to sue within three (3) years from the alleged discovery of fraud or the conclusion of the probate administration in 2014, rendering the current suit incompetent. Directions 4. The court directed that the application be canvassed by way of written submissions. The parties complied and their submissions have been duly considered in the writing of this ruling. Analysis and Determination 5. The solitary issue for determination by this Court is whether the Preliminary Objection dated 14th June 2025 is merited and specifically; whether the points raised therein constitute "pure points of law" capable of disposing of this suit summarily without the need for a full trial. 6. The 1st Defendant has moved this court to strike out the suit on the grounds that it is time-barred pursuant to Section 4(2) and Section 7 of the Limitation of Actions Act (Cap 22 Laws of Kenya). The Applicant contends that the suit was filed sixteen (16) years after the transfer of the land and twelve (12) years after the conclusion of probate proceedings. Conversely, the Plaintifi/Respondent opposes the objection, relying on Section 26 of the same Act, asserting that the suit is founded on fraud which was only discovered on 1st November 2024. 7. The law on what constitutes a valid Preliminary Objection is now well settled in this jurisdiction. The locus classicus is the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, where Law JA stated: “ So far as I am aware, 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 the contract giving rise to the suit to refer the dispute to arbitration.” 8. More recently, in Odeny (Formerly Victor Onyango Odeny) v Attorney General [2024] KEHC 5627 (KLR), Mugambi J succinctly characterized the essential elements of a preliminary objection as follows: “ ...the essential characteristics of a preliminary objection can be succinctly stated as follows: i. It must be on a pure point of law, not factual matters. ii. It is argued on assumption that all facts pleaded by the party against whom that objection is targeted are correct. iii. If any fact has to be ascertained or if what is sought in the objection is an exercise of judicial discretion, it cannot be raised. iv. If successful, it must be capable of disposing the suit without the need of proceeding to full trial.” 9. Applying these principles to the instant case, the Court must determine if the plea of limitation raised here is a "pure point of law." A plea of limitation can indeed be a preliminary objection, but only if the dates of the cause of action are undisputed on the face of the pleadings. 10. In this matter, the Plaintifi has expressly pleaded in Paragraph 9 of the Plaint that he discovered the alleged fraud on 1st November 2024 upon obtaining a Green card of the suit property. Section 26 of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2214/eng@2026-02-05 2

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the Limitation of Actions Act provides that where an action is based on fraud, the period of limitation does not begin to run until the plaintifi has discovered the fraud or could with reasonable diligence have discovered it. 11. The 1st Defendant disputes this timeline, arguing in their submissions that the Plaintifi "could with reasonable diligence" have discovered the facts earlier, specifically pointing to the succession proceedings in 2013 and the Plaintifi's possession of the original title. The Defendant asks the Court to find that the Plaintifi ought to have known of the transfer years ago. 12. This divergence creates a factual controversy. To determine whether the suit is time-barred, this Court would first have to ascertain when the Plaintifi actually discovered the fraud, or whether he could have discovered it earlier with reasonable diligence. As stated in Odeny (supra): "If any fact has to be ascertained... it cannot be raised" as a preliminary objection. 13. A Preliminary Objection is argued on the assumption that all facts pleaded by are correct. If this Court assumes the Plaintifi’s pleaded fact (that fraud was discovered in 2024) is correct, then the suit filed in 2025 is well within the limitation period. The Defendant’s argument attempts to challenge the veracity of the Plaintifi’s account regarding the date of discovery. That is a matter of evidence, requiring the production of proofs, witness testimony, and cross-examination. It cannot be resolved summarily. 14. Consequently, I find that while the objection is undoubtedly anchored on a statutory provision regarding limitation, it does not ascend to the threshold of a pure point of law. It is, rather, a mixed question of law and fact, as its determination requires this Court to ascertain disputed dates which can only be established through evidence. It does not meet the threshold of a Preliminary Objection as set out in Mukisa Biscuit case. 15. In the upshot, the Preliminary Objection dated 14th June 2025 is found to be premature and lacks merit. It is hereby dismissed with costs to the Plaintifi. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 5TH DAY OF FEBRUARY 2026. M.D. MWANGI JUDGE In the virtual presence of: Mr. Githuka holding brief for Mr. Itaya for the plaintifi M/S. Ochola holding brief for M/S. Mong’are for the 1st defendant No appearance by the 2nd- 4th defendants Court assistant- Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2214/eng@2026-02-05 3

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