Korir. & 2 others v Kurgat & another (Environment and Land Case E006 of 2026) [2026] KEELC 4769 (KLR)

PART II: THE 1ST DEFENDANT/OBJECTOR’S PRELIMINARY OBJECTION th st (4) On 18 February 2026, the 1 Defendant/Objector (hereinafter “the Objector”) filed a Notice of Preliminary Objection (hereinafter “Objection”) dated 12.2.2026 on grounds that the suit is timebarred by operation of section 7 of the Limitation of Actions Act, the cause of action having arisen in 1994. Further, it is deponed that the suit is fatally defective, frivolous, vexatious and an abuse of the process of this Court. It is on this basis that the Objector seeks an order that the suit is struck out in its entirety and attendant costs. (5) In his written Submissions dated 4th June 2026 and filed on even date, learned Counsel Mr. Kipsamo instructed by the Firm of Messieurs Kipsamo & Company Advocates representing the Objector, rehashed the substance of the Objection. (6) Regarding the question whether this objection has surmounted the threshold of a Preliminary Objection that it must raise a point of law, Counsel submits that in accord with Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696; and Oraro vs. Mbaja 1 KLR 141, this objection raises purely a point of law, without disputed facts. In this regard, it is argued that upon perusal of the Application dated 28th January 2026 and specifically paragraph 4 thereof and upon perusing the Plaint and specifically paragraph 8 and the Plaintiffs’’ Witness Statements, the Plaintiffs have averred that they discovered the alleged fraudulent or illegal transfer in 1994. It is further argued that in their written Submissions dated 28th April 2026, the Plaintiffs have not denied that they discovered the alleged fraudulent or illegal transfer in 1994. (7) As to whether this claim is time-barred and that as a consequence, this Court is deprived of jurisdiction to hear and determine it, it is argued that properly speaking, this suit is for recovery of land and in this connection, it is urged that since it is indisputable that the cause of action arose in 1994 and that the suit was filed in 2026, on the 32nd year, this claim is time-barred. PART III: THE PLAINTIFFS/RESPONDENTS’ SUBMISSIONS ON THE OBJECTION th (8) In her written Submissions dated 28 April 2026 and filed on even date, learned Counsel Ms. Maiyo instructed by the Firm of Messieurs Kipkorir Rono & Company Advocates representing the Plaintiffs/Respondents, takes a position that the bjection does not surmount the test of a Preliminary Objection as enunciated in Mukisa Biscuits Manufacturing Co. Ltd vs. West End Page 2 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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Distributors Ltd [1969] EA 696; Nadrea vs. Chiwaya & 13 others [2024] KEELC 4265 (KLR); Jubilee Insurance Company Limited vs. Nyaema & 4 others [2024] KEHC 6803 (KLR); and Muturi vs. Sifuna [2024] KEHC 11299 (KLR), having been raised in circumstances where facts on intermeddling have to be ascertained by the Court and having further been raised in circumstances where this suit is not about recovery of land but intermeddling in the estate of the deceased. In this connection, it is urged that section 7 of the Limitation of Actions Act does not apply which applies to recovery of land and not intermeddling. Page 3 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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(9) Regarding whether the suit is time-barred, it is argued further that since the question for determination is about intermeddling, Courts have consistently held that such a transfer without succession is void, placing reliance upon Re Estate of Veronica Njoki Wakagoto (Deceased) [2013] (eKLR); and Benson Mutuma Muriungi v. CEO Kenya Police SACCO & another [2016] eKLR. (10) Counsel thus urges this Court to find the Objection without merit and dismiss it with costs to the Claimant. PART IV: THE 2ND DEFENDANT’S RESPONSE nd (11) There was no formal or informal response by the 2 Defendant. PART V: QUESTIONS FOR DETERMINATION (12) Commending themselves for determination - gleaning from the Objection and the rival written submissions - are three questions as follows: (i) First, whether the 1st Defendant/Objector’s Objection has surmounted the test of a Preliminary Objection (as to be sustainable). (ii) Second, whether this suit is time-barred in the context of section 7 of the Limitation of Actions Act (iii) Third, which party should bear the costs of this Application? PART VI: ANALYSIS AND DETERMINATION (i) Whether the 1st Defendant/Objector’s Objection has surmounted the test of a Preliminary Objection (as to be sustainable) (13) First, at the outset, this Court is cognizant that this plea falls in the class of actions conceptually known as actio praejudicialis (a preliminary action seeking determination of a preliminary issue on which other primary issues proposed for litigation depend). This Court is further cognizant that this preliminary plea further falls in the class of actions conceptually known as actio non or actionem non habere debet (a plea which seeks a declaration of this Court that the Plaintiffs/Respondents have been deprived of the right to maintain this action by filing it out of timeline of 12 years limited by section 7 of the Limitation of Actions Act). (14) Second, such a plea is dispositive in nature. This Court thus Page 4 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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entertains no doubt that a Preliminary Objection can properly so be dispositive of a suit, provided that the objection is anchored on a pure point of law, unblemished with either disputed or contested or unascertained facts which can only be established in a trial or immediately unascertainable facts which can only be established in a trial. It follows that a Preliminary Objection, properly so, is a pure point or question of law which has been pleaded, or which arises by clear implication of the Page 5 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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pleadings, and which if argued as a preliminary point, is capable of disposing the suit. However, it does not mean that a Preliminary Objection is raised in a vacuum. It should properly so be predicated on either facts of common cause or undisputed or contested or ascertained or immediately ascertainable facts. See the Court of Appeal (hereinafter “COA”) rendition in the cause celebre and now locus classicus decision in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 (hereinafter “the Mukisa case”), at page 700, where Law JA (as he then was) expressed a judicial view that “So far as I’m 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.” In the Mukisa case, Sir Charles Newbold, P (as he then was), at page 701, reasoned that “A preliminary objection is in the nature of what used to be a demurrer. It arises a pure point of law which is argued on the assumption that all the facts pleaded by the other side or correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” The Supreme Court of Kenya (hereinafter “SCORK”) has since affirmed the rendition in the Mukisa case. See for instance Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR, where SCORK stated as follows: “Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.” It follows that if any Motion which claims to be a Preliminary Objection, as a matter of necessity, is predicated on a question or fact which calls for proof or authentication or ascertainment, as a matter of legal principle, the question should set down for hearing and determination. In Oraro vs. Mbaja [2005] 1 KLR 141, Ojwang J. (as he then was) citing in approval the Mukisa Biscuit case(supra) held as follows: “1. 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. 2. Any assertion which claims to be a preliminary objection, and yet it bears s 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. 3. If a matter comes before the Court dressed as a “preliminary objection” it will not come co-exist with such factual scenarios as may lead to the Page 6 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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Court to exercise its discretion by virtue of Section 3A of the Civil Procedure Act. 4. The Court’s discretion is never exercised just on the basis of proposition of law: there must be a factual situation of which the Court takes cognizance, and in relation to which its equitable conscience is exercised. 5. It has to be appreciated that the Court’s discretion exercised by virtue of Section 3A of the Civil Procedure Act is always of for the purpose of upholding the law as far as is possible; and this would require preserving the claims of parties so that they may be heard and determined according to law. 6. The Applicant’s plea is that the Respondent’s pleadings be terminated in limine. There is no consistency between such a prayer, which belongs to the normal Page 7 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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practice attending preliminary objection (matters of law), on the one hand, and the case for ensuring fair trial which the Applicant has also urged, on the other hand.” (15) Third, and joined at the hip with the foregoing is the position that it is now established law, that a Preliminary Objection can properly so be raised in regard to the time limited to file a claim under any law, including the Limitation of Actions Act. (16) This Court will be guided by the three legal principles discussed above. (17) Upon subjecting the said objection to the test of a Preliminary Objections discussed at length above, and upon addressing my judicial mind to the factual issues raised by the Objector and principally that time started to run in 1994 and that the suit was thus filed 32 years after the cause of action arose, way beyond the limitation of 12 years; and upon juxtaposing the Objector’s assertion to the Plaintiffs/Respondents’ rebuttal that the Plaintiffs/Respondents’ claim revolves around a declaration that the act of intermeddling by the Objector was illegal, null and void ab initio as opposed to mere recovery of land contemplated by section 7 of the Limitation of Actions Act; and upon taking into account that fraud is pleaded and particularized in the Plaintiffs/Respondents’ said Plaint, it is the finding of this Court and it is so concluded that the Objection is not anchored on a pure point of law, since it is blemished with disputed, contested, unascertained and immediately unascertainable facts as follows: (i) First, whether time started to run in 1994, translating that the suit was filed 32 years after the cause of action arose way beyond the limitation of 12 years; (ii) Second, whether the Plaintiffs/Respondents’ action seeks a declaration of this Court (otherwise known as action of declarator) that the act of intermeddling by the Objector was illegal, null and void ab initio as opposed to a suit for recovery of land contemplated by section 7 of the Limitation of Actions Act; and (iii) Third and finally, if it is true that the Objector acquired the suit property by intermeddling, whether the Objector can benefit from the protection of the limitation of the period to file an action for recovery of land under section 7 of the Limitation of Actions Act. In other words, this Court is expected to determine Page 8 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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whether the Plaintiffs/Respondents’ action falls under the class of actions known as actio perpetua, which are unconstrained by time limits or under the class of actions known as actio temporalis, with time limits and thus constrained by section 7 thereof. Page 9 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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Needless to underscore, the foregoing three contested issues are appropriate for plenary action as opposed to summary procedure and should therefore be settled after hearing parties. This Objection, therefore, takes the impermissible posture of constraining this Court, as a matter of necessity, to venture into a protracted analysis and examination of the said disputed, contested, unascertained and immediately unascertainable fact. (18) (19) It is on this basis that this Court reaches a conclusion that this Objection has failed the test of Preliminary Objections and consequently unsustainable. In any event, granted that this finding does not at all oust the 1st Defendant’s right of prosecuting this factual issue and calling evidence thereon at the hearing stage, the 1st Defendant will absolutely suffer no prejudice which is irreparable by costs. (ii) Whether this suit is time-barred in the context of section 7 of the Limitation of Actions Act (20) Having reached the foregoing conclusion that his Objection has failed the test of Preliminary Objections, this substantive question is rendered moot. PART VII: DISPOSITION (21) Wherefore this Court finds the Objection without merit and dismisses it. Costs shall be in the cause. Virtually Delivered, Signed and Dated in ELC Eldoret this 24 th day of July 2026 …………….………… C.N. Ondieki Judge In the presence of: Advocate for the Plaintiffs/Respondents: Ms. Maiyo Advocate for the 1st Defendant/Objector: N/A Advocate for the 2nd Defendant: N/A Court Assistant: Ms. Chepkoech & Ms. Juma Page 10 of 6 Eldoret ELCLC Number E006 of 2026 – CNO (R)

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