Wakangu & another (Suing as the Administrators of the Estate of the Late Wakangu Tumuti) v Gatabaki & 4 others (Environment and Land Case E030 of 2024) [2026] KEELC 5382 (KLR)

1. That this honourable court has no jurisdiction to hear and determine this suit as the plaintiffs claim offends the mandatory provisions under the Limitations of Actions Act Section 67,16 and 17 for being filed hopelessly out of time which delay cannot be cured even by a generous interpretation and application of Article 159 of the Constitution of Kenya. 2. That this court has no jurisdiction to entertain and determine the plaintiffs suit as it is barred by the doctrine of res judicata the issues in dispute having been fully adjudicated and determined in Nairobi High Court HCCC no. 352 of 2011, Nairobi Milimani law courts civil suit no. 30 of 2020, Nairobi ELC case no. E176 of 2023 and Nairobi ELC no. 25 of 2019. 3. That the plaintiff in this suit has no proprietary interest in the suit property and hence due to the lack of the substratum of the claim, the suit is null and void ab initio and is thus an abuse of the process of this court. 4. The current suit cannot proceed to hearing due to the pendency of Nairobi ELC case no. 25 of 2019 which suit is directly and substantially in issue and is between the 2|Page RULING ELCLC NO. E030 OF 2024 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026.

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same parties and or between parties whom they or any of them claim as in the present suit which is still pending in court and the 3 rd defendant will invoke the provisions of Section 6 of the Civil Procedure Act, for this suit to be stayed. 2. The preliminary objection was canvassed through written submissions. The 3rd defendant filed its written submissions dated 16th March, 2026. The plaintiff did not file their written submissions. Be that as it may, I have considered the preliminary objection and the written submissions. The issue for determination is whether the notice of preliminary objection raise pure points of law. 3. Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows:“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, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that 3|Page RULING ELCLC NO. E030 OF 2024 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026.

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the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 4. Also, the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that:“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.” 5. Further, Ojwang, J (As he then was) in Oraro -vs- Mbaja (2005) KLR 141 where after quoting the statement of Law, JA. in the Mukisa Biscuits case (supra) went on to state that:“A 'preliminary objection' correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal 4|Page RULING ELCLC NO. E030 OF 2024 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026.

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principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point.... Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...” 6. From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial and lastly, the same ought to stem from and not outside of pleadings. Having carefully evaluated the grounds of the preliminary objection, I am not satisfied that the grounds in the preliminary objection raise pure points of law. 7. To begin with, a preliminary objection must contain facts not disputed by either party. The 3rd defendant filed its statement of defence dated 8th March, 2024. In its defence, the 3 rd defendant has denied the particulars of the plaint including 5|Page RULING ELCLC NO. E030 OF 2024 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026.

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that the dispute dates to 1978. Facts which are disputed can only be tried during trial and not summarily in a preliminary objection. 8. The 3rd defendant challenges this suit on grounds that it offends the mandatory provisions of Sections 67 (sic), 16 and 17 of the Limitation of Actions Act, Section 16 of the Limitations of Actions Act provides:“For the purposes of the provisions of this act relating to actions for the recovery of land, an administrator of the estate of a deceased person is taken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration.” 9. Section 17 provides:“Subject to section 18 of this Act, at the expiration of the period prescribed by this act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.” 10. The 3rd defendant submitted that the plaintiffs have failed to demonstrate that the suit property has been vested in them through a confirmed grant. To determine whether the 6|Page RULING ELCLC NO. E030 OF 2024 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026.

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plaintiffs are the administrators of the estate of the deceased, the 3rd defendant is inviting this court to comb through evidence and establish the same. This is not within the province of a preliminary objection, as the court will be engaging in a mini trial of sorts. 11. It was also submitted that the dispute originates from a 1978 land transaction with litigation filed in Nairobi HCCC no. 2752 of 1982. The 3rd defendant submitted that the suit was filed more than 40 years since the alleged cause of action. I have read the plaint dated 29 th January, 2024 and the narration of the events leading to the filing of this suit which dates back to 1978. I also note that the plaintiffs pleaded particulars of fraud and illegalities. 12. In the case of Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi [2019] eKLR, the court held as follows:“13. The law as I understand it is that the defence of limitation of time is a matter for determination at the trial; it cannot be dealt with in a summary manner or at preliminary stage or as a preliminary objection. The court should formulate limitation as one of the issues 7|Page RULING ELCLC NO. E030 OF 2024 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026.

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for determination and decide it on evidence adduced at the trial. (Emphasis mine) On this see the case of Oruta & another v Nyamato [1998] KLR 590, where the court held that limitation of action:-“…could only be queried at the trial but not by…a preliminary objection…The appellant could raise the objection at the trial and the trial Judge would have to deal with the matter on the evidence to be adduced at the trial’’ (Emphasis mine) 14.See also the case of Divecon Ltd v Shirinkhanu S. Samani Civil Appeal No 142 0f 1997, where the court quoted with approval the words of Gachuhi, J.A., the leading Judge in the Oruta case (ibid) that: “It will be up to the judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…” (Emphasis mine)” 13. From the above authorities, limitation of time can only be litigated during trial. This is not an issue fit for a preliminary objection. 8|Page RULING ELCLC NO. E030 OF 2024 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026.

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14. Ground 4 of the preliminary objections suffer the same fate. A preliminary objection cannot not determine whether the instant suit is sub judice if the claim is not contained within the same pleadings. How is the court supposed to know that there is ELC case no. 25 of 2019 that is pending before this or any other court while it is required to confine itself to the pleadings before it. With all due respect and based on the circumstances of this case, a notice of preliminary objection is not the best tool to use to determine Section 6 of the Civil Procedure Act. 15. From the above, I find the instant preliminary objection not well thought out. It does not raise pure points of law, thus, the notice of preliminary objection dated 21 st February, 2024 lacks merit and it is hereby dismissed. Costs in the cause. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER, 2026. HON. MBOGO C.G. JUDGE 03/09/2026. In the presence of:9|Page RULING ELCLC NO. E030 OF 2024 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026.

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Mr. Benson Agunga – Court assistant No appearance for the parties 10 | P a g e R U L I N G E L C L C N O . E 0 3 0 O F 2 0 2 4 D E L I V E R E D VIRTUALLY ON 3RD SEPTEMBER 2026.

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