keelc-2026-05683

BHAVESH RAMESHCHANDRA RAVAI ..................................... 4TH DEFENDANT INDRAWAN ASHABAI PATEL ..................................................... 5TH DEFENDANT BANK OF BARODA KENYA LIMITED ....................................... 6TH DEFENDANT RULING 1. This ruling determines two Notices of Preliminary Objection, both dated 15th January 2026. The rst was led by the 3rd, 4th, 5th and 6th Defendants in Kisumu ELC Case No. E008 of 2022, and the second by the 3rd, 4th and 5th Defendants in Kisumu ELC Case No. E010 of 2022. The two suits were consolidated pursuant to the ruling of Hon. Justice S. Okong’o (as he then was) with ELC Case No. E008 of 2022 designated as the lead le. The two objections are in identical terms and were canvassed together. They shall accordingly be determined together in this ruling. 2. The consolidated suits were both commenced by way of Plaints dated 14th March 2022 and led on 31st March 2022. The Plainti’s case, as pleaded, is that the property known as Title Number Kisumu/ Municipality Block 12/37 (“the parent title”) was reserved and alienated by the colonial government to its predecessors, the East African Posts and Telecommunications Corporation and Kenya External Telecommunications Limited, and was subsequently vested in the Plainti by virtue of Legal Notice No. 133 of 11th March 1988, Legal Notice No. 154 of 5th November 1999 and Legal Notice No. 131 of 14th September 2001 (“the Vesting Orders”). The Plainti avers that the parent title was thereafter illegally issued to the 2nd Defendant, passed through the 3rd and subsequent Defendants, and was irregularly subdivided into Title Numbers Kisumu/Municipality Block 12/435 and 12/436, with a charge being registered in favour of Bank of Baroda Kenya Limited. 3. In both suits, the Plainti seeks, inter alia: a declaration that it is the legal owner of the parent title; declarations that the issuance of the titles to the Defendants and the subdivision of the parent title are illegal and should be cancelled; an order directing the Chief Land Registrar to eect registration of the parent title in the Plainti’s name; eviction orders against the Defendants registered as proprietors of the resultant subdivisions, their tenants or agents; and permanent injunctions restraining the Defendants from dealing with or interfering with the suit properties. 4. The Notices of Preliminary Objection invite the Court to strike out the suits in limine on the following grounds: rst, that this Court lacks jurisdiction to hear and determine the suits by virtue of the causes of action being time-barred under Section 7 of the Limitation of Actions Act (Cap. 22) Laws of Kenya; second, that the suits are, on the face of the pleadings and the Plainti’s own documents, actions to recover land and/or to impeach and cancel titles and obtain eviction orders, and are consequently subject to the twelve-year limitation period under Section 7; third, that the Plainti’s own evidence discloses that the Plainti had knowledge that the parent title had allegedly been illegally issued to a third party and sought recovery of the suit properties by its letter dated 14th July 2003 to the Ministry of Lands and Settlement, such that its right of action accrued at the latest by that date; fourth, that the suits, led on 31st March 2022, were instituted approximately nineteen (19) years after 14th July 2003, far beyond the prescribed twelve years; and fth, that the suits are therefore statute-barred, incompetent and fatally and incurably defective, limitation being a jurisdictional issue. 5. When the matter came up for directions, it was ordered that the Preliminary Objections be canvassed by way of written submissions. The 3rd, 4th, 5th and 6th Defendants led joint written submissions dated 3rd July 2026 through the rm of CM Advocates LLP. The Plainti led written submissions in opposition dated 28th July 2026 through the rm of Gikera & Vadgama Advocates. The 1st and 2nd https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 2

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Defendants in both suits, and the 6th Defendant in ELC Case No. E010 of 2022, did not participate in the objections. The Defendants’ submissions 6. Counsel for the objecting Defendants submitted that the Preliminary Objection meets the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 as it raises a pure point of law which is discernible from the Plainti’s own pleadings and documents without the need to ascertain any contested facts. Counsel emphasized that the Court is not being invited to determine ownership on the merits, the validity of the Vesting Orders or whether any fraud occurred, but only to consider the Plaint, the Plainti’s witness statement, the Plainti’s bundle of documents, the reliefs sought and the statutory limitation period. 7. On the substance of the claim, Counsel submitted that the suits are, in essence, actions for the recovery of land within the meaning of Section 7 of the Limitation of Actions Act. Reference was made to the prayers in the Plaints seeking declarations of ownership, cancellation of titles and subdivisions, registration of the parent title in the Plainti’s name, eviction and permanent injunctions. It was submitted that a party cannot avoid the limitation statute by dressing up a land recovery claim as one for declarations, cancellation, rectication or injunctive relief, and that the Court must look at the substance of the claim and the practical eect of the reliefs sought. 8. On accrual of the cause of action, Counsel relied on the Plainti’s own witness statement of Peter Rotich dated 14th March 2022, particularly paragraphs 7 and 8 thereof, in which the Plainti states that while processing titles pursuant to the Vesting Orders, its lawyers were notied that the parent title had been illegally issued to a third party and charged to a bank for KShs. 3,000,000, and that by a letter dated 14th July 2003 the Plainti sought the assistance of the Ministry of Lands and Settlement in the recovery of its properties that had allegedly been illegally allocated to third parties, including the suit property. Counsel submitted that the cause of action accrued, at the very latest, on 14th July 2003; that the twelve-year period expired on or about 14th July 2015; and that the suits led in March 2022 were instituted approximately six years and eight months after the statutory deadline and approximately nineteen years after the Plainti’s admitted discovery. 9. Counsel further submitted that the allegations of fraud and illegality do not save the suits, since Section 26 of the Limitation of Actions Act only postpones the running of time until the fraud or mistake is discovered or could with reasonable diligence have been discovered, and on the Plainti’s own documents the alleged illegality was discovered in 2003. It was also submitted that the Plainti’s administrative engagements with the Ministry of Lands, the National Land Commission and the Directorate of Criminal Investigations did not suspend or interrupt the limitation period; that the subdivision of the parent title and the subsequent registrations were derivative of the same root title known to the Plainti since 2003 and did not create a fresh cause of action; and that the registration of a restriction on 18th October 2021 was a preservatory measure incapable of reviving a claim which had become statute-barred in July 2015. 10. Finally, Counsel submitted that limitation is a jurisdictional bar, relying on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Civil Appeal No. 50 of 1989) [1989] KECA 48 (KLR); [1989] KLR 1, Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application No. 2 of 2011) [2012] KESC 8 (KLR), Iga v Makerere University [1972] EA 65 and Mtana Lewa v Kahindi Ngala Mwagandi (Civil Appeal No. 56 of 2014) [2015] KECA 532 (KLR); [2015] eKLR, and drew attention to Section 17 of the Limitation of Actions Act which extinguishes a party’s title to land upon expiry of the limitation period. The Court was urged to uphold the objections, strike out both suits and award costs to the objecting Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 3

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The Plainti ’s submissions 11. The Plainti opposed both Preliminary Objections through written submissions dated 28th July 2026 led by the rm of Gikera & Vadgama Advocates. Counsel framed four issues for the Court’s consideration: whether the Preliminary Objection raises a pure point of law; whether the Defendants have established that the suit is barred by Section 7 of the Limitation of Actions Act; whether Sections 41 and 42 of that Act are applicable to the present suit; and whether the Plainti’s claim falls within the ambit of Section 26 thereof. The Court was urged to dismiss both objections with costs and to direct that the consolidated suits proceed to hearing on their merits. 12. On the rst issue, Counsel submitted that the objection is not a true preliminary objection within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 because its determination depends upon the ascertainment of disputed facts and the resolution of mixed questions of fact and law. Relying on Oraro v Mbaja [2005] 1 KLR 141 and on the decision of the Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application No. 36 of 2014) [2015] KESC 2 (KLR), and on Wamurichu v Wanjala (Civil Case No. 580 of 2010) [2025] KEHC 5251 (KLR) and Njeri v Ndirangu & another (Environment & Land Case No. E224 of 2023) [2025] KEELC 4217 (KLR), Counsel submitted that a preliminary objection must raise a pure question of law, must proceed on facts that are admitted or incapable of dispute, and must not require the investigation of disputed facts or the evaluation of evidence. It was further submitted that an objection framed as going to jurisdiction is not thereby relieved of those requirements, and that while limitation may in an appropriate case be determined on a preliminary objection, that course is open only where the material facts are plain, admitted and incapable of dispute. 13. On the accrual of the cause of action, Counsel submitted that the Defendants’ case proceeds upon the assumption that the letter dated 14th July 2003 conclusively established accrual, and that the assumption is borne out neither by the pleadings nor by the evidence. It was submitted that paragraph 8 of the witness statement, properly construed, establishes only that the Plainti had been unable to obtain details relating to the parent title from the Kisumu Land Registry and had therefore sought the intervention of the Ministry; that it does not establish that the Plainti had by then obtained the relevant land records, identied the persons claiming interests in the property, ascertained the complete chain of title, or acquired the material facts necessary to institute the present proceedings; and that a request to a Government agency for assistance in investigating an apparent irregularity is not, without more, proof of discovery of the facts constituting a cause of action. 14. Central to the Plainti’s answer is the contention that the material facts were discovered only in 2019. Counsel submitted, relying upon paragraph 15 of the Plaint and paragraph 15 of the witness statement, that it was only in or about the year 2019 that the Plainti discovered that the parent title had been unlawfully subdivided into two separate titles and that the suit property had been registered in the name of the 5th Defendant. It is that subdivision and registration, and not the correspondence of 14th July 2003, which is said to constitute the factual foundation of the present claim. Counsel submitted that a general complaint or request for assistance concerning suspected irregular allocations does not establish knowledge of the subsequent subdivision of the parent title, the creation of the resultant titles, the identities of the registered proprietors, or the particular transactions now impugned. 15. Counsel further submitted that investigations concerning the suit property continued long after July 2003, encompassing the Ndung’u Commission, subsequent inquiries by the National Land Commission, investigations by the Directorate of Criminal Investigations and further administrative processes, and that whether those investigations merely conrmed facts already known to the Plainti or disclosed new facts material to its cause of action is a question answerable only upon a full https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 4

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consideration of the evidence. It was submitted that the Court cannot properly determine that issue on the basis of a single letter written in 2003. 16. On the second issue, Counsel expressly accepted that, having regard to the substance of the reliefs sought, the present suit is one for the recovery of land within the meaning of Section 7 of the Limitation of Actions Act. It was submitted, however, that the characterisation does not by itself determine whether the suit is statute-barred; that the operative words of the section are “the right of action accrued”; and that the Defendants were still required to establish, as a matter of uncontested fact, when the right of action accrued and that twelve years had expired before the institution of the proceedings. At best, Counsel submitted, the Defendants have demonstrated the existence of a genuine dispute as to when the Plainti acquired sucient knowledge to sue, which dispute can be resolved only after evidence has been received and evaluated. 17. Counsel sought to distinguish the authorities relied upon by the Defendants. It was submitted that Mtana Lewa v Kahindi Ngala Mwagandi (Supra) [2015] eKLR concerned adverse possession and the operation of Sections 7, 13, 17 and 38 of the Act, and did not concern the determination of when a cause of action accrues in a claim founded upon the alleged unlawful alienation of property vested by statute; that Iga v Makerere University [1972] EA 65 establishes only the uncontroversial proposition that a suit led outside the prescribed period is incompetent, the question here being whether the period had in fact expired; and that Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 and Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), while correctly arming that jurisdiction is everything, do not determine when a cause of action accrues for the purposes of Section 7 nor authorise the determination of contested questions of fact at a preliminary stage. 18. On the third issue, and in the alternative, Counsel submitted that Section 7 cannot be read in isolation and that the Act itself excludes certain categories of land and proceedings from the ordinary limitation regime. Section 41, it was submitted, provides that nothing in the Act enables any person to acquire title to, or any interest over, Government land or land otherwise enjoyed by the Government, while Section 42 excludes specied proceedings by the Government, including proceedings for the recovery of Government land, from the operation of the Act. The anterior question, Counsel submitted, is whether the suit property falls within that statutory protection, and that question cannot be answered without examining the vesting instruments, the legislative framework, the legal character of the Plainti and the nature of the suit property. 19. In support of that submission Counsel traced the devolution of the parent title: that it was originally reserved and allocated by the Government for use by the East African Posts and Telecommunications Corporation and Kenya External Telecommunications Limited; that upon the dissolution of the East African Community it vested in the Kenya Posts and Telecommunications Corporation pursuant to Section 116(4) of the Kenya Posts and Telecommunications Corporation Act (Cap. 411) and Legal Notice No. 133 of 1988; and that following the restructuring eected by the Kenya Information and Communications Act, 1998, Parliament provided by Paragraph 5(6) of the Third Schedule to that Act for the transfer of specied assets to the Plainti, pursuant to which the Minister issued Legal Notice No. 154 of 1999 and Legal Notice No. 131 of 2001 vesting the suit property in the Plainti for the discharge of pension liabilities arising from the restructuring. Counsel submitted that the Plainti is accordingly not an ordinary occupational pension scheme but a body established as part of the statutory restructuring of a State Corporation, administering assets vested by Government for a public purpose, and relied on Association of Retirement Benets Schemes v Attorney General & 2 others [2022] KECA 543 (KLR) for the proposition that retirement benet schemes may, depending upon their statutory framework and functions, perform functions of a public nature. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 5

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20. Counsel relied upon Ethics and Anti-Corruption Commission v Kipkemoi & 3 others (Environment and Land Case No. E089 of 2023) [2023] KEELC 19189 (KLR), in which the Court held that Section 42(1)(d) is categorical that the Act does not apply to proceedings by the Government to recover possession of Government land, and upon Mohamed Bwana Obo Athman & 24 others v Kenya Airports Authority [2020] KEELC 1203 (KLR), in which the Court observed that land registered in favour of a State agency is public land against which adverse possession cannot be claimed. Those authorities were relied upon to demonstrate that where land derives from Government ownership and is held pursuant to statutory functions serving a public purpose, the Court must rst determine whether Sections 41 and 42 apply before invoking Section 7. 21. On the fourth issue, Counsel submitted that the claim falls within the ambit of Section 26 of the Act, which postpones the commencement of the limitation period until the plainti has discovered the fraud or could with reasonable diligence have discovered it. It was submitted that the claim is expressly founded upon allegations of unlawful and fraudulent alienation of property vested by statute, so that the applicability of Section 26 arises directly from the Plainti’s own pleadings; and that the Defendants’ reliance upon the 2003 letter conates suspicion of an irregularity with discovery of the fraud contemplated by the section. Counsel relied upon Teleposta Pension Scheme Trustees Registered v Crucial Properties Limited & another [2022] KEELC 15549 (KLR), a decision concerning this same Plainti, in which the Court, applying Section 26 to the pleaded chronology, held that the cause of action arose in 2013 and that the Plainti was entitled to commence a suit for recovery within twelve years from that year. 22. In conclusion, Counsel submitted that the objections depend upon contested questions of fact concerning the accrual of the cause of action, the applicability of Sections 26, 41 and 42 of the Act, and the legal character of the suit property and of the Plainti’s interest in it; that those matters require evidential examination; and that the Preliminary Objections dated 15th January 2026 ought accordingly to be dismissed with costs, with the consolidated suits proceeding to hearing on their merits. Issues for determination 23. I have carefully considered the Notices of Preliminary Objection, the pleadings, the Plainti’s witness statement and bundle of documents, the parties’ respective submissions and the applicable law. In my view, the following issues arise for determination: (i) Whether the Notices of Preliminary Objection raise proper preliminary objections in law; (ii) Whether the consolidated suits are, in substance, actions to recover land within the meaning of Section 7 of the Limitation of Actions Act; (iii) When the Plainti’s causes of action accrued and whether the suits are time-barred; (iv) Whether the allegations of fraud and illegality, the subsequent subdivision and registrations, or the Plainti’s administrative engagements save the suits from the limitation bar; and (v) What orders should issue, including as to costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 6

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Analysis and determination Issue No. (i): Whether the Notices of Preliminary Objection raise proper preliminary objections in law 24. The locus classicus on what constitutes a preliminary objection is Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA 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 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.” 25. Sir Charles Newbold P added 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 had to be ascertained or if what is sought is the exercise of judicial discretion.” 26. Similarly, in Oraro v Mbaja [2005] 1 KLR 141, Ojwang J (as he then was) held that a preliminary objection is a point of law which must not be blurred with factual details liable to be contested and to be proved through the process of evidence, and that any assertion which bears factual aspects calling for proof is not a true preliminary objection. The Supreme Court restated the principle in Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR), observing that a preliminary objection must be founded upon a settled and crisp point of law, such that its application to undisputed facts leads to but one conclusion, and identifying, as the second of the two questions which arise, whether the facts in issue are settled. To the same eect are Wamurichu v Wanjala [2025] KEHC 5251 (KLR) and Njeri v Ndirangu & another [2025] KEELC 4217 (KLR), in both of which the court declined to determine a limitation objection at the threshold because the facts upon which it depended were contested and required investigation. 27. A plea of limitation is, as Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (Supra) itself recognises, one of the classic examples of a proper preliminary objection. But the example is not a dispensation. A plea of limitation qualies as a preliminary objection only when it can be disposed of on facts which are admitted, or which are incapable of dispute, or which the objector is content to assume in the claimant's favour. Where the date of accrual is itself in controversy, the plea loses the quality which entitles it to be taken in limine, because the court cannot reach it without rst making a nding of fact. The question in the present case is therefore not whether limitation may in principle be raised by way of preliminary objection, but whether the material upon which these objections depend is of that admitted and indisputable character. 28. In my considered view it is not, for four reasons. First, the parties are not merely at variance as to the legal consequence of agreed events; they are at variance as to what the Plainti knew and when it knew it. The Defendants contend that the Plainti possessed, by 14th July 2003, knowledge that the parent title had been issued away. The Plainti contends that what it possessed in 2003 was an apprehension of irregularity across a portfolio of vested properties, and that it acquired knowledge of the facts constituting the present causes of action only in or about 2019. Each contention is grounded in the Plainti's pleadings and documents. To prefer one over the other is to make a nding of fact. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 7

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Secondly, the letter of 14th July 2003, upon which the objections principally rest, does not bear on its face the unequivocal meaning attributed to it. It is addressed to the Minister for Lands and Settlement under the reference “Issue of Titles in respect of properties vested in TelPosta Pension Scheme Trustees”; it speaks of properties which “may have been irregularly allocated to third parties or have caveats placed on them without the knowledge of the Scheme Trustees”; and it seeks the Minister's assistance so that the properties may be registered in the Trustees' names. The auxiliary “may”, the portfolio-wide frame of reference and the request for assistance are all at least consistent with a party which suspects that something is amiss and is seeking to nd out. Whether the letter records settled knowledge of an adverse title to this particular parcel, or an unresolved concern about a schedule of properties, is a question of construction which cannot fairly be answered without trial. Thirdly, the Plainti's answer engages Section 26 of the Limitation of Actions Act, which xes the commencement of time by reference not only to actual discovery but also to the date upon which the fraud or mistake “could with reasonable diligence have been discovered”. Reasonable diligence is a standard, and its application is quintessentially fact-sensitive. It requires the court to know what searches were open to the Plainti, what the Kisumu Land Registry disclosed or declined to disclose when approached, and whether anything in the conduct of others impeded inquiry. Paragraph 8 of the witness statement asserts that the Plainti was unable to obtain the details it sought from the registry and for that reason turned to the Ministry. That assertion may be right or wrong, but it cannot be resolved on the papers. Fourthly, the Plainti's alternative case under Sections 41 and 42 of the Act requires the court to construe Legal Notice No. 133 of 1988, Legal Notice No. 154 of 1999 and Legal Notice No. 131 of 2001, together with Section 116(4) of the Kenya Posts and Telecommunications Corporation Act (Cap. 411) and paragraph 5(6) of the Third Schedule to the Kenya Information and Communications Act, 1998, and to determine the legal character of the Plainti and the status of the suit property in light of those instruments. That is a substantial exercise in statutory construction bound up with facts about the Scheme's constitution and functions. It is not the crisp point of law of which the Supreme Court spoke in Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR). 29. I am alive to the submission that the objections proceed upon the Plainti's own documents and therefore assume the Plainti's facts to be correct. But a document produced by a party is not thereby converted into an admission of every meaning an opponent seeks to place upon it. The demurrer principle requires the objector to take the claimant's case at its highest. Taken at its highest, the Plainti's case is that it suspected irregularity in 2003, was unable to verify it, pursued the matter through the Ministry, the Ndung'u Commission, the National Land Commission and the Directorate of Criminal Investigations, and discovered the subdivision of the parent title and the registration of the suit property in the name of the 5th Defendant only in or about 2019. On that footing the suits are within time. I therefore nd and hold that the Notices of Preliminary Objection dated 15th January 2026 do not raise proper preliminary objections in law. Issue No. (ii): Whether the consolidated suits are, in substance, actions to recover land within the meaning of Section 7 of the Limitation of Actions Act 30. Section 7 of the Limitation of Actions Act provides as follows: “ 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 rst accrued to some person through whom he claims, to that person.” 31. It is well settled that in determining whether a suit is an action to recover land, the Court looks at the substance of the claim and the practical eect of the reliefs sought, and not merely the form in which https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 8

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the prayers are couched. A party cannot escape the reach of Section 7 by framing what is in truth a claim for the recovery of land as one for declarations, cancellation of title, rectication of the register, eviction or injunctive relief. 32. In the present consolidated suits, the Plainti prays for declarations that it is the legal owner of the parent title; declarations that the issuance of the titles to the Defendants and the subdivision of the parent title into Kisumu/Municipality Block 12/435 and 12/436 are illegal and should be cancelled; an order directing the 1st Defendant to eect registration of the parent title in the Plainti's name; eviction orders; and permanent injunctions. Each of those prayers is anchored on, and is in aid of, the Plainti's asserted right to regain the suit properties. 33. The Plainti's witness statement is to like eect. At paragraph 8 the Plainti states that by its letter dated 14th July 2003 it requested the Ministry of Lands and Settlement for assistance in the “recovery of its properties that were illegally allocated to third parties”, and at paragraphs 19 to 21 it asserts that it requires access to its properties and that the title issued to the 5th Defendant should be cancelled and deregistered. 34. The point is in any event no longer contested. In its written submissions the Plainti expressly accepted that, having regard to the substance of the reliefs sought, the present suit is one for the recovery of land within the meaning of Section 7, directing its case instead to the date upon which the right of action accrued. The concession was properly made and accords with my own analysis of the prayers. 35. I accordingly nd and hold that the consolidated suits are, in substance, actions to recover land within the meaning of Section 7 of the Limitation of Actions Act. The second issue is answered in the armative. I add, however, that this nding carries the objections no distance at all. Section 7 does not bar actions to recover land; it bars such actions brought more than twelve years “from the date on which the right of action accrued”. The characterisation of the suit merely identies which limitation period applies. The dispositive question, to which I now turn, is when the right of action accrued, and upon that question the concession has no bearing. Issue No. (iii): When the Plainti's causes of action accrued and whether the suits are time-barred 36. A cause of action accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plainti to succeed. In an action to recover land, the right of action accrues when the claimant's asserted entitlement is confronted by an adverse title or adverse possession of which the claimant is aware, or ought with reasonable diligence to be aware. 37. It is for the party who asserts that a suit is statute-barred to establish it. Limitation is a defence, and a defendant who invokes it must demonstrate the date of accrual from which the statutory period is to be reckoned. Where that date is sought to be established at the threshold and without evidence, the objector must show that it appears from material which the claimant cannot dispute. The burden does not shift to the Plainti to disprove a date which the Defendants have themselves selected. 38. The Defendants x accrual at 14th July 2003 and rely upon paragraphs 7 and 8 of the witness statement of Peter Rotich and upon the letter of that date appearing at pages 66 to 67 of the Plainti's bundle. Paragraph 7 deposes that during the titling exercise the Plainti's lawyers were notied that the parent title had been illegally issued to a third party and charged to a bank for KShs. 3,000,000. Paragraph 8 deposes that by the letter of 14th July 2003 the Plainti sought the assistance of the Ministry in the recovery of properties allegedly illegally allocated, including the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 9

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39. Read as the Defendants read them, those passages support a 2003 accrual. But that is not the only reading of which they are capable, and the competing reading is neither strained nor fanciful. Paragraph 7 records a notication received by advocates in the course of an administrative exercise; it does not state that the Plainti veried the notication, obtained the entries in the register, or identied the person in whose name the parent title then stood. Paragraph 8, read with the Plainti's submissions, is said to establish that the Plainti had been unable to obtain particulars from the Kisumu Land Registry and for that reason sought the Ministry's intervention. A party that approaches a Ministry for help in nding out what has happened to its property is not, without more, a party that already knows. 40. The letter itself, as I have observed, speaks in terms of properties which “may have been” irregularly allocated or encumbered “without the knowledge of the Scheme Trustees”. It is a composite communication concerning a schedule of vested properties. Whether it evidences knowledge of an adverse title to Kisumu/Municipality Block 12/37 specically, or a generalised concern about a portfolio, is a matter upon which the Court would be assisted by evidence, including evidence of what response the Ministry gave and what the Plainti learned, or failed to learn, in consequence. 41. The Plainti's positive case is pleaded and deposed with some particularity. At paragraph 15 of the Plaint and paragraph 15 of the witness statement it is averred that it was only in or about 2019 that the Plainti discovered that the parent title had been unlawfully subdivided into Kisumu/Municipality Block 12/435 and 12/436 and that the suit property had been registered in the name of the 5th Defendant. Those are the dealings which the Plaints impugn and which the prayers seek to undo. If that averment is made good in evidence, the causes of action accrued in 2019 and the suits, led in March 2022, were brought well within time. 42. There is a further matter. Section 13 of the Limitation of Actions Act provides that a right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run. The Defendants say that possession adverse to the Plainti is established by the Plainti's own prayer for eviction. That prayer establishes possession as at the date of the Plaints in 2022. It does not establish when such possession began, still less that it began in or before July 2003. When the Defendants or their predecessors entered into possession is nowhere admitted on the record, and it is a fact which must be proved. Until it is, the condition upon which Section 13 makes accrual depend cannot be said to have been satised as at the date the Defendants have chosen. 43. It follows that the computation upon which the objections depend cannot be performed. A limitation calculation requires a starting date. Here the starting date is the very thing in controversy. Whether the twelve-year period expired in July 2015, or will expire in 2031, or is to be reckoned from some other date altogether, cannot be determined until the Court has found when the right of action accrued; and that nding cannot be made without evidence. 44. In Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104, the Court of Appeal observed that the law of limitation is intended to protect defendants against unreasonable delay and that the statute expects an intending plainti to exercise reasonable diligence in his own interest. I accept that principle without reservation. But diligence is an inquiry, not an assumption. Whether this Plainti acted with reasonable diligence between 2003 and 2019, having regard to its repeated approaches to the Ministry, its participation in the processes of the Ndung'u Commission, its recourse to the National Land Commission and its complaint to the Directorate of Criminal Investigations, is precisely the sort of question which is answered after evidence and not before it. 45. I accordingly nd and hold that the Defendants have not established that the consolidated suits are time-barred under Section 7 of the Limitation of Actions Act. The date upon which the Plainti's causes of action accrued is a contested question of fact which must abide the hearing. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 10

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Issue No. (iv): Whether the allegations of fraud and illegality, the subsequent subdivision and registrations, or the Plainti's administrative engagements save the suits from the limitation bar 46. The Plainti's pleadings rest substantially on allegations of illegality and irregular allocation, and it is therefore necessary to consider Section 26 of the Limitation of Actions Act, which provides that where an action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or where the right of action is concealed by the fraud of any such person; or where the action is for relief from the consequences of a mistake, then “the period of limitation does not begin to run until the plainti has discovered the fraud or the mistake or could with reasonable diligence have discovered it”. 47. The section xes the commencement of time at the date of discovery, whether actual or constructive. It postpones the start of the limitation period; it does not suspend the period once begun. But its operation depends entirely upon a nding as to when discovery occurred or ought to have occurred, and that is a nding of fact. 48. The Plainti's claim is expressly founded upon allegations of unlawful and fraudulent alienation of property vested in it by statute. Section 26 is therefore squarely engaged on the face of the pleadings. The Defendants' answer is that the fraud was discovered in 2003. That answer, once again, asserts the contested fact rather than establishing it. 49. The distinction which the Plainti draws between suspicion of an irregularity and discovery of a fraud is a real and material one. A party may apprehend that something has gone wrong with its title without knowing who has taken it, under what instrument, or by what dealings. Section 26 speaks of discovery of “the fraud”, not of a suspicion that some fraud may have occurred. Whether the Plainti crossed that threshold in 2003, or only in 2019, and whether it could with reasonable diligence have crossed it sooner, are questions of fact and degree which the Court can resolve only upon evidence. 50. That conclusion is fortied by Teleposta Pension Scheme Trustees Registered v Crucial Properties Limited & another [2022] KEELC 15549 (KLR), a decision concerning this same Plainti. Construing the pleaded chronology before it, the Court there concluded that the cause of action pertaining to the recovery of the suit property in that case came to light in 2013, and that the Plainti was entitled to sue within twelve years from that year. The decision is of a court of coordinate jurisdiction and is persuasive rather than binding, and I accept that it turned upon a dierent record. Its signicance for present purposes is narrower but not insignicant: it demonstrates that the question when this Scheme discovered the alienation of its vested properties has been treated as one to be determined upon the material in each case, and that a court seized of that question has declined to x accrual at the earliest date upon which the Scheme may have entertained a concern. That is a further reason for declining to x it summarily here. 51. As to the subdivision of the parent title and the registration of the resultant titles in favour of the 5th Defendant, I am not persuaded that the Plainti's case can be dismissed as wholly derivative at this stage. The resultant parcels are separate registered titles, created by a separate instrument and entered on the register on dates of their own. The Plaint impugns those registrations as distinct dealings and seeks their cancellation. Whether they gave rise to causes of action of their own, and whether the Plainti's discovery of them in 2019 constitutes discovery of the fraud for the purposes of Section 26, are arguable questions upon which I should not pronounce before the facts are found. 52. The Plainti's administrative engagements stand on a similar footing. I accept, as a matter of law, that correspondence with public agencies does not of itself stop, suspend or extend a statutory limitation https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 11

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period, and nothing in this ruling should be read as suggesting otherwise. But those engagements are not relied upon only as suspending time. They are relied upon as evidence bearing upon discovery and diligence under Section 26, and upon that issue they are plainly relevant. What the Plainti asked, what it was told, what the Ndung'u Commission and the National Land Commission found, and what the Directorate of Criminal Investigations established, may all bear upon when the Plainti discovered, or with reasonable diligence could have discovered, the matters of which it complains. That material cannot be evaluated on a preliminary objection. 53. The restriction registered on 18th October 2021 falls to be considered in the same way. Its signicance, if any, is evidential, and its weight is a matter for the trial court. 54. I turn to Sections 41 and 42 of the Act, upon which the Plainti advances its alternative case. Section 41 provides that nothing in the Act enables a person to acquire title to, or an easement over, Government land or land otherwise enjoyed by the Government. Section 42 excludes specied proceedings by the Government, including proceedings to recover possession of Government land, from the operation of the Act. Whether either section avails this Plainti depends upon the character of the suit property and upon the legal character of the Plainti itself. Those are not matters which can be determined from the Plaints alone. They require the Court to construe the vesting instruments, to consider the statutory scheme under which the Plainti was constituted, and to determine whether property vested in a body of trustees by legal notice for the discharge of pension obligations arising from the restructuring of a State Corporation retains any public character for the purposes of the Act. 55. The authorities cited on this question illustrate the diculty of resolving it at the threshold rather than dispelling it. In Ethics and Anti-Corruption Commission v Kipkemoi & 3 others [2023] KEELC 19189 (KLR), the Court held that Section 42(1)(d) is categorical that the Act does not apply to proceedings by the Government to recover possession of Government land; the claimant there was a constitutional commission suing in respect of land pleaded to be Government land at all material times. In Mohamed Bwana Obo Athman & 24 others v Kenya Airports Authority [2020] KEELC 1203 (KLR), the Court observed that land registered in favour of a State agency is public land against which adverse possession cannot be claimed. The Defendants say that neither case concerned a trustee corporation suing to recover land vested in it for the benet of its members, and that is so. But it does not follow that the sections are inapplicable; it follows only that the question is not concluded by authority and must be decided upon the particular statutory and factual matrix of this case. The Plainti, for its part, relies upon Association of Retirement Benets Schemes v Attorney General & 2 others [2022] KECA 543 (KLR) for the proposition that retirement benet schemes may, depending upon their statutory framework and functions, perform functions of a public nature. The Plainti does not contend that it is the Government, and I do not understand it to do so. Its contention is that property vested in it by the Government under Legal Notices No. 133 of 1988, No. 154 of 1999 and No. 131 of 2001, for the discharge of pension liabilities arising from the restructuring of the Kenya Posts and Telecommunications Corporation, may retain a character which engages Sections 41 and 42. That contention is a serious argument on a question of statutory construction which has not been authoritatively settled, and it is not one which can properly be disposed of on a preliminary objection without evidence as to the Scheme's constitution, its functions and the terms upon which the property was vested. 56. The fourth issue is accordingly answered in favour of the Plainti. Neither the allegations of fraud and illegality under Section 26, nor the subsequent subdivision and registrations, nor the Plainti's administrative engagements, nor its alternative case under Sections 41 and 42, can be foreclosed at this stage. Each raises questions of fact, or of mixed fact and law, which must be determined at the hearing. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 12

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Issue No. (v): What orders should issue, including as to costs 57. I readily accept that limitation is not a mere procedural technicality and that, where established, it goes to the jurisdiction of the Court. Section 7 is couched in prohibitory terms, and Section 17 attaches the substantive consequence that upon expiry of the prescribed period the title of the person entitled to bring the action is extinguished. In Mtana Lewa v Kahindi Ngala Mwagandi (Supra) the Court of Appeal described Section 7 as a classical limitation provision which prohibits actions for the recovery of land after twelve years from the date when the cause of action accrued, and conrmed that upon expiry of that period the title of the person entitled to bring the action stands extinguished. In Iga v Makerere University (Supra) it was held that a plaint barred by limitation is a plaint barred by law. And as Nyarangi JA memorably put it in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Supra): “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 58. The Supreme Court expressed itself similarly in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others (Supra), holding that a court's jurisdiction ows from the Constitution or legislation or both, and that the question of jurisdiction is not one of mere procedural technicality but goes to the very heart of the matter. 59. Those authorities are not, however, an answer to the present objections; they are the reason the objections fail. Each presupposes that the fact which ousts jurisdiction has been established. A court downs tools “the moment it holds the opinion that it is without jurisdiction”, and it can hold that opinion only when the material before it permits the conclusion to be reached. Where the jurisdictional fact is itself contested, the court does not down tools; it tries the fact. To strike out a suit upon an assumed date of accrual would be to decline jurisdiction on a premise never proved, which is as much an abdication as assuming a jurisdiction one does not possess. Nothing in this ruling diminishes the force of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Supra) or Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others (Supra); it holds only that their premise is absent here. 60. Where a triable question exists as to the very foundation of a limitation plea, the just course is to determine it upon evidence, with the defence of limitation preserved to the Defendants, rather than to extinguish the claim upon a contested assumption. Upon careful consideration of the submissions of both sides, I nd that these Preliminary Objections raise mixed questions of fact and law which require the ascertainment of disputed facts and cannot be determined as pure points of law from the pleadings alone. The threshold laid down in Mukisa Biscuit case has not been met, and the objections fails. 61. As to costs, it is hereby directed that each party bear its own costs of and incidental to the Preliminary Objections. Disposition 62. In the end, and owing from the ndings above, the Court makes the following orders: i. The Notices of Preliminary Objection dated 15th January 2026 led in Kisumu ELC Case No. E008 of 2022 and Kisumu ELC Case No. E010 of 2022 respectively are hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 13

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ii. Each party shall bear its own costs of and incidental to the Preliminary Objections. DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 24TH DAY OF SEPTEMBER, 2026. E. K. WABWOTO JUDGE In the presence of:Ms. Opondo for the Plainti. Ms. Jane Okoth for the 3rd, 4th, 5th and 6th Defendants (ELC E008 of 2022) and the 3rd, 4th and 5th Defendants (ELC E010 of 2022). N/A for the other Defendants. Court Assistant: Joanne Omondi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5683/eng@2026-09-24 14

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