Kimani v Ndoho & 2 others (Environment and Land Case E040 of 2025) [2026] KEELC 5107 (KLR)

2) THAT this Honorable Court lacks jurisdiction to entertain the Applicant's suit as the same is timebarred under Section 7 of the Limitation of Actions Act, Cap 22, Laws of Kenya, the alleged cause of action having arisen in the year 2002, more than twelve (12) years before the filing of this suit in 2025. 3) THAT the Applicant's claim for specific performance is founded on a contract that is void ab initio, the same having been entered into by Elizabeth Wambui Ndoho (now deceased) who lacked legal capacity to sell or transfer the property known as Tigoni/Tigoni Block 1/1390, which was registered in the name of her deceased husband, the late Joel Ndoho Mwaura, contrary to the mandatory provisions of Sections 45 and 82(b)(ii) of the Law of Succession Act, Cap 160. 4) THAT the purported sale by the late Elizabeth Wambui Ndoho in 2002 constituted inter-meddling with the estate of the late Joel Ndoho Mwaura and is therefore illegal, null and void, and this Honourable Court cannot grant specific performance of an illegal or void contract. 5) THAT an illegal and time-barred contract cannot confer any enforceable rights, either legal or equitable, upon the Applicant, and consequently, the Originating Summons discloses no reasonable cause of action capable of being sustained before this Honourable Court. ELCLMISC. NO. E040 OF 2025 2|Page

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6) THAT at no single time have the Applicant obtained possession of the suit property in question. 7) THAT the entire suit is misconceived, incompetent, frivolous and an abuse of the due process of this Honourable Court, and ought to be struck out forthwith. 2. On 17/11/2025 when the parties appeared in Court Counsel for the Plaintiff sought leave of 14 days to file a response to the Preliminary Objection. Counsel for the 3 rd Respondent informed the Court that they shall association themselves to the Preliminary Objection. On 5/03/2026 only the counsels for the Applicant and the 1 st Respondent appeared in Court and told the Court that they had complied by filing written submission and they sought a ruling date. 3. The 1st Respondent filed their written submissions dated 18/11/2025 and submitted that the Honourable Court should uphold the Notice of Preliminary Objection dated 3/11/2025 and down its tools by striking out the Applicant’s suit with costs. The 1st Respondent contends that the entire claim is fundamentally incompetent and statute-barred, having been institutionalized way outside the mandatory timelines provided under the law. 4. Their submission rests on Section 4(1) of the Limitation of Actions Act, Cap 22 of the Laws of Kenya, which dictates that an action founded on contract must be brought within six years from the date the cause of action accrued. Given that the Applicant’s Originating Summons is pegged on an ELCLMISC. NO. E040 OF 2025 3|Page

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Agreement of Sale executed on 8/01/2002, they thus submit that a staggering twenty-three years have lapsed before the filing of this suit in 2025. 5. They argue that statutory limitation is not a mere procedural technicality but a substantive threshold issue that goes to the very heart of the Court’s jurisdiction. Relying on the locus classicus judicial authority of Owners of Motor Vessel "Lillian S", [1989] eKLR (Civil Appeal 50 of 1989) alongside Bosire Otgero v Royal Media Services [2015] KEHC 4728 jurisdiction (KLR), is the everything, submission and emphasizes where a matter that is demonstrably statute-barred, the Court has no power to take any further step other than to dismiss the matter right at the threshold stage. 6. Furthermore, the 1st Respondent points out a fatal incapacity on the face of the contract itself, noting that the Agreement of Sale explicitly reveals that the late Elizabeth Nyambura Ndoho was not the registered proprietor of the suit property known as Tigoni/Tigoni/Block 1/1390 at the time of engagement, meaning she lacked the legal capacity to alienate or transfer the land. The submission further questions the Applicant’s inordinate delay, pointing out that although the deceased vendor passed away in the year 2022, the Applicant sat on her purported rights for two decades during the vendor's lifetime, only moving the Court ELCLMISC. NO. E040 OF 2025 4|Page

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three years after her demise while the Respondents have enjoyed quiet and uninterrupted possession of the land. 7. Additionally, the 1st Respondent submits that submits that the Applicant cannot seek refuge under the saving provisions of Section 26 of the Limitation of Actions Act. To benefit from an extension of time, elements of fraud, concealment, or mistake must be strictly pleaded and proved. That a keen look at the Applicant’s pleadings reveals a total failure to plead or particulars any fraud, meaning the six-year statutory clock began running in 2002 and has long since run out. On the strength of these submissions and guided by Section 27 of the Civil Procedure Act, the 1 st Respondent prays that the Preliminary Objection be sustained and the suit be struck out with costs following the event. 8. In opposition to the Preliminary Objection the Applicant Monica Wanjiru Kamau filed her written submissions which are undated and, implores the Honourable Court to dismiss the Respondents' Notice of Preliminary Objection dated 3/11/2025 with costs, asserting that the objection fails to meet the strict threshold required for a pure point of law. Drawing guidance from the locus classicus decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, [1969] E.A. 696 (CA). The Applicant submits that a valid Preliminary Objection must be argued on the clear assumption that all facts pleaded by the opposite side are correct. By inviting the Court to adjudicate upon ELCLMISC. NO. E040 OF 2025 5|Page

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complex and heavily contested factual issues such as the history of land possession, the validity of succession processes, and the specific conduct of the parties, the Respondents' application completely collapses under its own weight. 9. To reinforce this position, the Applicant relies on the authoritative pronouncements of Justice J.B. Ojwang (as he then was) in George Oraro v Bank Eston Mbaja, [2005] KEHC 3182 (KLR) emphasizing that any matter purporting to be a Preliminary Objection must never deal with disputed facts nor derive its foundation from factual information that stands to be tested by the rules of evidence. 10. In her submissions the Applicant contests the allegation that the suit is time-barred or void ab initio for intermeddling under Sections 45 and 82 (b) (ii) of the Law of Succession Act, Cap 160. She further submitted that the late Elizabeth Nyambura Ndoho explicitly undertook to regularize the title through High Court Succession Cause Number 1310 of 2001, resulting in the successful transmission of the suit property, Tigoni/Tigoni Block 1/1390, into her name on 9/10/2002 before the full purchase price of Kesh 200,000 was settled. While acknowledging a delay in formalizing the registration, the Applicant explains that she took all reasonable steps and entered into physical occupation of the land in 2019, where her family has since enjoyed quiet possession. ELCLMISC. NO. E040 OF 2025 6|Page

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11. She invoked the equitable principles of proprietary estoppel and constructive trust, the Applicant cites Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri [2014] eKLR and Wambui Mwangi & Another vs Mwangi Muriithi arguing that were a purchaser has paid full consideration and taken possession, equity will intervene to prevent the vendor or her estate from resiling from the agreement. 12. Crucially, the Applicant submits that allegations of fraud and manipulation surrounding the succession and transaction timelines automatically oust the statutory limitation period under Section 7 of the Limitation of Actions Act, Cap 22. Pursuant to Section 26 of the same Act, the limitation clock is legally suspended and does not begin to run until the underlying fraud or mistake is discovered by the aggrieved party. Relying on the Court of Appeal decisions in Koinange & 13 Others v Koinange and Arthi Highway Developers Ltd v West End Butchery Ltd & 6 Others, [2015] eKLR the Applicant contends that no person can be permitted to rely on their own illegal acts or the wrongful conduct of an estate's predecessor to defeat an otherwise legitimate claim, as Courts cannot sanction or shield a fraud. 13. This equitable safeguard is further supported by the Supreme Court of Kenya in Willy Kimutai Kitilit v Michael Kibet, [2018] KECA 573 (KLR) which firmly established that equity will not allow a statute to be used as an ELCLMISC. NO. E040 OF 2025 7|Page

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instrument of fraud. Because the determination of these fraudulent undertones and the exact timeline of discovery require rigorous testing through viva voce evidence at a full trial, the Applicant concludes that the plea of limitation is entirely premature, legally unsustainable, and must be dismissed to allow the substantive Originating Summons to be heard on its merits. 14. The other Respondents did not file any written submissions. 15. It is now trite that a Preliminary Objection must rest exclusively on a pure point of law, and the Court must guard jealously against any invitation to traverse contested facts under the guise of a legal objection. This principle was reiterated by the Court of Appeal in Nitin Properties Ltd v Singh Kalsi & Another [1995] eKLR, where the Court held in no uncertain terms that a Preliminary Objection 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. 16. Measured against this standard, the limbs of the Preliminary Objection touching on capacity, inter-meddling, and possession plainly fail, for they invite the Court to resolve disputed questions going to the circumstances of the 2002 transaction and the conduct of the parties thereafter matters that can only be properly tested through evidence at ELCLMISC. NO. E040 OF 2025 8|Page

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trial, not assumed in the Respondents' favour at a preliminary stage. 17. The plea of limitation, however, stands on a different footing and must be addressed on its own terms, since limitation is ordinarily the paradigm example of a pure point of law capable of disposing of a suit at the threshold. Where a vendor's capacity is itself impugned by reference to intermeddling under Section 45 of the Law of Succession Act, the gravity of that illegality cannot be understated; the High Court in In Re Estate of Zacharia Muriuki Karobia (Deceased) [2025] KEHC 4039 (KLR) affirmed that “The property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorised to do so by the law." 18. The difficulty for the Respondents, however, is that the Applicant has invoked fraud and concealment to engage Section 26 of the Limitation of Actions Act, and the authorities are consistent that this is not a matter the Court can dispose of by mere assertion on either side. In Jubilee Insurance Company Limited v Nyaema & 4 Others [2024] KEHC 6803 (KLR), the High Court, applying the earlier reasoning in Justus Tureti Obara v Peter Koipeitai Nengisoi [2014]eKLR held that the limitation period in cases founded on fraud does not begin to run until the Plaintiff has discovered the fraud, and it is the date of that ELCLMISC. NO. E040 OF 2025 9|Page

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discovery which determines whether the action is brought in time. 19. The corollary, drawn out in a similar dispute before the Environment Scheme and Trustees Land Court in Teleposta Registered v Crucial Pension Properties Limited & another [2022] KEELC 15549 (KLR), is that the date of discovery is itself a contested question of fact: in an analogous case the Court declined to strike out the suit at the preliminary stage, holding that it could not determine on the pleadings alone when the Plaintiff discovered the fraud, since the parties disputed both the existence of the fraud and the date of its discovery, a matter requiring trial. 20.That reasoning applies with equal force here; the Applicant pleads that the irregularity in the 2002 transaction only became apparent to her in circumstances connected to the vendor's death in 2022 and the subsequent succession process, an assertion the Respondents dispute. The point of discovery, and indeed whether fraud is made out at all, cannot be resolved by this Court without evidence, and a limitation defence that depends on an unresolved factual controversy of this kind has not yet ripened into a pure point of law. 21.Having reconsidered the limitation ground squarely, this Court arrives at the same ultimate disposal, though for a more precise reason than a blanket finding of factual contestation. The grounds touching on capacity, interELCLMISC. NO. E040 OF 2025 10 | P a g e

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meddling, and possession fail because they require the Court to assume disputed facts in the Respondents' favour, contrary to the Nitin Properties Ltd v. Jagjit Sing Kalsi & Ano. NAIROBI C.A. Civil Appeal No. 132 of 1989 (Unreported). The limitation ground, though framed as a point of law, cannot presently be severed from the Applicant's fraud and concealment allegations under Section 26; until the date of discovery is established through evidence, the Court cannot say with certainty that the suit is time-barred, and a Preliminary Objection that depends on first resolving such a contest is not a pure point of law ripe for determination at this stage. It would be premature, and indeed unsafe, for this Court to strike out the suit on limitation grounds while the very date from which time is to be reckoned remains in genuine dispute between the parties. 22.Accordingly, the Court makes the following orders: i) The Notice of Preliminary Objection dated 3/11/2025 is found not to meet the threshold for a valid Preliminary Objection on any of its limbs, including limitation, and is hereby dismissed in its entirety, with costs to the Applicant. ii) The matter shall proceed to be heard and determined on its merits, where the contested issues of capacity, intermeddling, possession, fraud, and the date of discovery for purposes ELCLMISC. NO. E040 OF 2025 11 | P a g e

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of limitation may be properly interrogated through evidence. iii) Noting that the Applicant filed this suit via Originating Summons and there appear to be contested issues of fraud, in line with Article 159(2) (d) I direct the Applicant to convert the Originating Summons to a Plaint and serve all parties within 14 days and Respondents to file their Statements of Defence within 14 days after service. iv) Mention to canvas the Notice of Motion dated 23/05/2025 on 6/10/2026 and for further directions. Orders Accordingly. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 16TH DAY OF JULY, 2026. ……………………………… MOGENI J JUDGE In the presence of: Applicant/Respondent – Absent Mr. Wang’ang’a for the 1st Respondent Miss Otieno for the 2nd Respondent Mr. Motari for the 3rd Respondent Mr. Melita - Court Assistant ……………………… MOGENI J JUDGE ELCLMISC. NO. E040 OF 2025 12 | P a g e

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