Dere v Muntet & 3 others

4. The objection was canvassed through written submissions. The issue before the Court is therefore whether the grounds raised constitute a proper Preliminary Objection capable of disposing of the suit at this stage. B. Pleadings The Notice of Preliminary Objection 5. The 1st Defendant, Koileken Muntet, raised a Preliminary Objection dated 6th January 2026 challenging the competence and sustainability of the Plainti’s suit in its entirety. The objection is premised, principally, on the ground that the suit is statute-barred under Section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya, the alleged cause of action having arisen in 1996 when the Plainti allegedly sold the suit land, or alternatively in 2010 when the 1st Defendant obtained ownership documents in respect of the land, both dates being more than twelve years before institution of the suit. 6. The 1st Defendant further contends that the Plainti’s prolonged and unexplained delay in asserting the alleged rights constitutes laches, acquiescence and estoppel. It is also contended that the suit is frivolous, vexatious, misconceived and an abuse of the process of the Court, having been brought to unjustly deprive the 1st Defendant of land allegedly lawfully acquired and occupied for over two decades. 7. The 1st Defendant additionally argues that the Plaint discloses no reasonable cause of action against him and is therefore liable to be struck out in limine. On these grounds, the 1st Defendant prays that the entire suit be dismissed with costs. C. Parties’ Submissions 8. The 1st Defendant/Applicant, in submissions dated April 2026, urged the Court to uphold the Notice of Preliminary Objection dated 6th January 2026 and dismiss the suit with costs. Counsel submitted that the Plainti’s claim, arising from the alleged sale, subdivision and transfer of land parcel Cis-Mara/ Olchoro/144 and resultant parcel Cis-Mara/Olchoro/1735, was statute-barred under Section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya, which bars an action for recovery of land after twelve years from the date the right of action accrued. It was submitted that the Plainti sold the land to the 1st Defendant on 30th January 1996 and acknowledged receipt of the purchase consideration, with the balance subsequently paid. Counsel contended that the Plainti thereafter participated in the subdivision and transfer process, including executing mutation forms, subdivision consents and transfer documents. Consequently, the limitation period was said to have expired in 2008. 9. The 1st Defendant further submitted that even if the Court considered the Plainti’s allegations of fraud, Section 26 of the Limitation of Actions Act would not save the suit because the Plainti had actual knowledge of the impugned transactions. Counsel pointed to the Plainti’s execution of subdivision and mutation documents on 23rd February 2010 and 18th May 2010 and the Land Control Board consents issued on 15th April 2010 and 9th June 2010. It was therefore argued that, at the latest, time began to run in 2010 and the twelve-year limitation period expired in 2022, whereas the suit was instituted in 2025. 10. Counsel relied on Solomon Curukia M'Ibaya v Grace Ntakira & Others, where the Court considered the application of Sections 4(2) and 7 of the Limitation of Actions Act and held that a claim instituted outside the prescribed limitation period was statutorily barred. On that basis, counsel submitted that the Plainti’s claim, having been brought well outside the statutory period, was incompetent and could not be sustained. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/932/eng@2026-09-22 2

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11. The 1st Defendant also maintained that the Plainti was barred by the equitable doctrines of laches, acquiescence and estoppel, having participated in the sale and subsequent processes relating to the land and thereafter remained silent for many years while the 1st Defendant remained in possession. It was further submitted that the Plainti’s allegations of fraud and illegality were vague and insuciently particularised as required by Order 2 Rule 10 of the Civil Procedure Rules, and that the Plainti had not demonstrated circumstances capable of impeaching the 1st Defendant’s registered title. The 1st Defendant therefore contended that the suit was frivolous, vexatious, misconceived and an abuse of the process of the Court and disclosed no reasonable cause of action against him. The Court was consequently urged to uphold the Preliminary Objection and strike out the suit with costs. D. Issues For Determination 12. Having considered the Preliminary Objection, the pleadings and the submissions, the following issues arise for determination: i. Whether the Notice of Preliminary Objection dated 6th January 2026 meets the legal threshold of a Preliminary Objection. ii. Whether the Plainti’s suit is statute-barred under Sections 7 and 26 of the Limitation of Actions Act. iii. Whether the grounds based on laches, acquiescence, estoppel, fraud, sanctity of title and want of a reasonable cause of action can properly be determined by way of Preliminary Objection. iv. Who should bear the costs of the Preliminary Objection. F. Analysis And Determination Whether the Preliminary Objection meets the legal threshold 13. The starting point is the celebrated decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law, JA stated: “ 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.” 14. Sir Charles Newbold, P. further stated that a Preliminary Objection raises a pure point of law which is argued on the assumption that the facts pleaded by the other side are correct and that it cannot be raised where facts have to be ascertained or where the Court is required to exercise discretion. The Supreme Court rearmed this principle in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR, holding that a Preliminary Objection should be founded upon a settled and crisp point of law whose application to undisputed facts leads to one conclusion. 15. Similarly, in Oraro v Mbaja [2005] 1 KLR 141, Ojwang, J. held that a Preliminary Objection must not be blurred with factual details liable to be contested and proved through evidence. Where the Court is required to investigate facts, the matter ceases to be a proper Preliminary Objection. This principle has continued to be applied by the Environment and Land Court. 16. The objection herein does not rest entirely on undisputed facts apparent from the pleadings. The 1st Defendant's case requires the Court to examine the circumstances surrounding the alleged sale of the property in 1996, the consideration allegedly paid, the Plainti’s participation in the subdivision https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/932/eng@2026-09-22 3

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process, the mutation forms, Land Control Board consents, transfer documents and the circumstances in which the 1st Defendant allegedly acquired title. 17. Those matters are not merely legal questions. They are factual matters which, where disputed, require proof by documentary and oral evidence. Indeed, the 1st Defendant's submissions expressly invite the Court to consider documents said to have been executed by the Plainti in 1996 and 2010. Such an exercise would require the Court to interrogate the authenticity, context, eect and circumstances of those documents. That is a function ordinarily reserved for the trial. 18. The Court therefore nds that, to the extent that the Preliminary Objection requires the Court to determine disputed facts, it does not satisfy the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. Whether the suit is statute-barred 19. Section 7 of the Limitation of Actions Act provides: “ 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.” 20. The general proposition advanced by the 1st Defendant is legally sound: an action for recovery of land instituted after the expiry of twelve years from accrual of the cause of action is ordinarily barred by Section 7 of the Act. The Court of Appeal and the Environment and Land Court have consistently recognised the twelve-year limitation period for claims for recovery of land. 21. However, the diculty in the present case is determining when the Plainti's cause of action accrued. The 1st Defendant asserts that it accrued in 1996 when the alleged sale took place. In the alternative, it is submitted that it accrued in 2010 when the subdivision and transfer processes were undertaken. 22. The Plainti's claim, as presented in the material before the Court, is founded, at least in part, on allegations of fraudulent subdivision and transfer. That allegation brings Section 26 of the Limitation of Actions Act into consideration. The provision states: “ Where, in the case of an action for which a period of limitation is prescribed, either— a. the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or b. the right of action is concealed by the fraud of any such person as aforesaid; or c. the action is for relief from the consequences of a mistake, 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.” 23. The eect of Section 26 is that, where fraud is properly alleged, the Court may have to determine when the alleged fraud was discovered or when it could, with reasonable diligence, have been discovered. That is ordinarily a question of fact. 24. This position was considered in ACK St Mathews Church Ndunduri v Ephantus & 9 Others [2022] KEELC 15107 (KLR), where the Court held that where a Plainti alleges fraud and invokes Section 26, the question of when the Plainti discovered the fraud is a matter to be ascertained at trial. The Court consequently declined to determine the limitation issue by way of Preliminary Objection. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/932/eng@2026-09-22 4

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25. Similarly, in Obura (Suing as the Personal Representative of the Estate of Edward Nyaika Sule) v County Government of Kisumu & 3 Others [2025] KEELC 5035 (KLR), the Court held that where the Plainti alleges fraudulent registration and pleads a particular date of discovery, the question whether the fraud occurred and when it was discovered are matters that can only properly be determined at trial. 26. In the present matter, the 1st Defendant submits that the Plainti could not rely on Section 26 because he participated in the subdivision and transfer processes in 2010. That submission, however, assumes as established facts that the Plainti executed the documents relied upon, that he understood their legal eect, that he had knowledge of the subsequent registration and transfer, and that such knowledge amounted to discovery of the alleged fraud. 27. Those are matters that cannot properly be conclusively determined without evidence. The Court cannot, at the Preliminary Objection stage, conduct a mini-trial to determine the circumstances under which the Plainti signed the documents, the nature and eect of the transactions, or whether the Plainti knew or ought reasonably to have known of the alleged fraud. 28. The position is also illustrated by Mugo Muruachimba v Moat Nyaga Kagau & 2 Others [2020] eKLR, as referred to in ACK St Mathews Church Ndunduri v Ephantus & 9 Others [2022] KEELC 15107 (KLR), where the Court held that the date when alleged fraud was discovered and whether it could have been discovered earlier through reasonable diligence were questions of fact requiring determination at trial. 29. It follows that although limitation is capable, in an appropriate case, of being raised as a Preliminary Objection, the particular limitation question presented before this Court cannot be determined without resolving contested factual matters. The objection therefore fails the Mukisa Biscuit threshold. Laches, acquiescence, estoppel, fraud, title and reasonable cause of action 30. The 1st Defendant further relies on laches, acquiescence and estoppel. These grounds similarly require an examination of the parties' conduct and the circumstances surrounding the transaction. The Court would have to determine, among other things, what the Plainti knew, what representations he made, whether he participated in the impugned transactions, and whether the 1st Defendant acted to his detriment in reliance upon the Plainti's conduct. 31. Such matters are factual in nature and cannot properly be determined conclusively through a Preliminary Objection where the underlying facts are disputed. 32. The allegation that the Plainti failed to plead fraud with sucient particularity raises a question of law. Order 2 Rule 10(1)(a) of the Civil Procedure Rules requires pleadings to contain the necessary particulars of, among other matters, fraud and misrepresentation. The Court of Appeal has repeatedly held that fraud must be specically pleaded and strictly proved. In Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, Tunoi, JA held that fraud must be specically pleaded and that the acts alleged to be fraudulent must be distinctly stated and proved. 33. However, whether the particulars pleaded by the Plainti are sucient, whether they disclose a sustainable cause of action, and whether the alleged fraud is ultimately proved are matters that must be considered against the actual Plaint and the evidence to be adduced at trial. A deciency that can properly be addressed through an interlocutory procedural application should not be converted into a Preliminary Objection where determination would require examination of contested facts. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/932/eng@2026-09-22 5

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34. The 1st Defendant also invokes the doctrine of sanctity of title. The Court accepts that registered title enjoys statutory protection and that a party seeking to impeach title on the basis of fraud or illegality bears the requisite evidential burden. However, whether the 1st Defendant's title was lawfully acquired or was procured through fraud or an illegality is a substantive question that can only be conclusively determined upon hearing the parties and considering the documentary and oral evidence. 35. The same applies to the contention that the Plaint discloses no reasonable cause of action. The Court must consider the Plaint as a whole and determine whether, assuming the pleaded facts to be true, the Plainti has disclosed a legally recognisable claim. More importantly, the present Preliminary Objection seeks to rely on matters outside the pleadings and on contested documents to demonstrate the alleged validity of the 1st Defendant's title and the Plainti's acquiescence. That exercise is beyond the proper scope of a Preliminary Objection. 36. The Court is mindful that a Preliminary Objection is intended to facilitate the expeditious disposal of proceedings where a pure point of law is capable of disposing of the matter. It should not, however, become a vehicle for determining contested evidence without a trial. As the Court of Appeal reiterated in Mutungi v FEP Sacco Society Limited & 2 Others [2024] KECA 494 (KLR), a Preliminary Objection cannot be founded on factual assertions requiring proof through evidence. 37. In the circumstances, the Court nds that the Preliminary Objection dated 6th January 2026 contains substantial questions of fact intertwined with questions of law. In particular, the question whether the Plainti's claim is statute-barred cannot be determined without rst establishing the circumstances of the alleged sale, subdivision and transfer, the Plainti's knowledge thereof, and the date on which the alleged fraud was discovered or ought reasonably to have been discovered. 38. Those matters should be ventilated at the substantive hearing, where the parties will have the opportunity to produce documentary and oral evidence and, where necessary, test the evidence through cross-examination. 39. Consequently, the Preliminary Objection has not met the threshold for a valid Preliminary Objection and is therefore without merit. E. Conclusion 40. In the result, the Notice of Preliminary Objection dated 6th January 2026 is dismissed. 41. It is so ordered. DATED, SIGNED, AND DELIVERED AT NAROK THIS 22ND DAY OF SEPTEMBER, 2026. HON. H.M. NYABERI CHIEF MAGISTRATE In the Presence of: Court Assistant: Mr. Danson Solian Plainti’s Advocate: Mr. Meingat Defendants Advocate: No Appearance https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/932/eng@2026-09-22 6

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