William Teto Kaasha & another v Peter Chege Karanja & 30 Others

3rd, 25th – 28th Defendants respectively, raise the following issues; i. The suit is statute barred contrary to Section 7 and 10 of the Limitation of Actions Act without leave of Court to file out of time. ii. The Plaintiff has no locus standi to institute a suit against the 29 th and 30th Defendants since there exists no contract between them. iii. The Plaintiffs have no legal interest in parcel Kajiado/Olooloitikoshi/Kitengela/3652. 2. In support of these objections, Counsel for the 29 th and 30th Defendants Olooloitikoshi submit that parcel Kajiado/ /Kitengela/ 3652 was registered in favour of the 4th Defendant on 10th March 1992 and transferred to the 29th Defendant on 17th July 1996, who has since been in peaceful and uninterrupted possession. The Plaintiffs thus, have no cause of action or locus standi against parcel 3652 and that the dispute is similarly barred by Section 7 and 10 Limitation of Actions Act. RULING ELCLC NO. E039 OF 2023 Page 2 of 7

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Counsel adds that the Plaintiffs father passed away on 31 st January 2010 which was fourteen years after the 29 th Defendant was registered as the owner of the said property. And that the late Kailo Ole Kaasha who neighboured the 29th defendant never challenged his possession or ownership. Counsel also submits that the Plaintiffs did not obtain leave for extension of time to file the suit outside the 12 years period as provided by Section 27 and 28 Limitation of Actions Act. 3. Counsel for the 3rd, 25th - 28th Defendants also made similar submissions on the limitation of time stating that this Court had no jurisdiction to entertain the suit. He adds that even if the said properties were acquired fraudulently, the defendants were innocent purchasers for value and the claim against them was invalid pointing out the inordinate delay to prosecute the matter excludes them from protection of Section 26. 4. At the time of writing the Ruling, the Plaintiffs had not filed their submissions to the Preliminary objections. 5. From the foregoing, the sole issue for determination is whether the preliminary objections are merited as sought. RULING ELCLC NO. E039 OF 2023 Page 3 of 7

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6. It is trite that a preliminary objection should be on a pure point of law or facts which can be discerned on the face of the pleadings as held in Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and bolstered by several Supreme Court cases including Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others [2015] KESC 23 (KLR). 7. In these objections, the Defendants invoke Sections 7 and 10 of the Limitation of Actions Act. Section 7 provides that an action to recover land may not be brought after twelve years from the date on which the right of action accrued and Section 10 deals with the accrual of a right of action in respect of a future interest in land. 8. While the objection on statute limitation is a pure point of law, the Court must examine whether the said objection can be determined on the face of the pleadings or it will require a factual investigation. The Defendants’ argument is that the cause of action arose in the 1990’s when the suit property was registered on their behalf. While, this argument is valid, a reading of the Plaint reveals an RULING ELCLC NO. E039 OF 2023 Page 4 of 7

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allegation of fraud and once fraud is alleged, Section 26 of the Limitation of Actions Act becomes material. 9. For actions based upon fraud, or where the right of action has been concealed by fraud, the limitation period does not begin to run until the Plaintiff has discovered the fraud or could with reasonable diligence have discovered it. The section also contains a proviso concerning property acquired for valuable consideration by a person who was not party to the fraud and had no knowledge or reason to believe that fraud had been committed. 10. The Court finds that these issues cannot be addressed without examining documentary evidence. 11. Further, the Defendants also argue that the Plaintiffs did not obtain leave to file the suit out of time under Sections 27 and 28 of the Act. The Court finds that the said sections concern extension of limitation periods in specified actions involving ignorance of material facts, particularly actions founded on negligence, nuisance or breach of duty resulting in personal injuries. They are distinct from Section 26, which specifically addresses fraud, mistake and concealment. The absence of a prior application for extension of time cannot, by itself, RULING ELCLC NO. E039 OF 2023 Page 5 of 7

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conclusively dispose of such a claim where the statutory starting point for limitation may itself be affected by pleaded fraud. 12. The 29th and 30th Defendants have objected to the Plaintiffs locus standi on grounds that they neither have a contractual obligation against them, nor an interest in parcel Kajiado/ Olooloitikoshi/ Kitengela/3652 the same being registered in favour of the 29 th Defendant. These are contested facts which can only be proved at the hearing. 13. The Preliminary objection dated 2nd January 2024 and 25th February 2025 are hereby dismissed with costs to abide the outcome of the suit. Dated, Signed and Delivered virtually at Kajiado this 24th day of September 2026. JUDY OMANGE JUDGE. IN THE PRESENCE OF: Mr. Nzaku for Plaintiff. Mr. Charagu for 17th, 18th, 19th Defendants. Mr. Ouma for 3rd, 25,26th, 27th, 28th Defendants. RULING ELCLC NO. E039 OF 2023 Page 6 of 7

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Mr. Mugo for 5th Defendant. Ms. Kagia for 1st and 6th Defendants. Peter – Court Assistant. RULING ELCLC NO. E039 OF 2023 Page 7 of 7

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