1. This Ruling is in respect of the Preliminary Objection raised by the 1 st Defendant herein vide the Notice of Preliminary Objection dated 17 th March 2026 seeking that the suit be struck out with costs.
2. The Plaintiffs filed the suit in their capacity as the Administrators of the Estate of Kipkoech Arap Milgo, deceased, vide the Plaint dated 13 th November, 2025. They claim that the deceased was the legal proprietor of a parcel of land known as KERICHO/KIMULOT/158 measuring approximately 11.6 hectares (herein called the suit property). They plead that on 28 th January, 2020, they discovered that the 1 st Defendant, in collusion with the 2 nd Defendant (the Land Registrar), had fraudulently and irregularly subdivided the suit property into KERICHO/KIMULOT/1581, 1582, 1583 and 1584 (herein called the resultant parcels) and caused parcel numbers KERICHO/KIMULOT/1582 and 1583 to be registered in the 1 st Defendant’s name.
3. The Plaintiffs therefore sought orders declaring that the sub-division of the suit land and creation of the resultant parcels was fraudulent, illegal, null and void, an order for cancellation of land parcel numbers KERICHO/KIMULOT/1582 and 1583, an order for restoration of the suit land, a permanent injunction and costs of the suit.
4. Together with the Plaint, the Plaintiffs filed an Application under Certificate of Urgency vide the Notice of Motion dated 13 th November, 2025 seeking orders of temporary injunction and inhibition.
5. In response to the Plaintiffs’ claim, the 1 st Defendant filed the 1 st Defendant’s Statement of Defence dated 17 th March, 2026 and a Notice of Preliminary Objection of even date. On 25 th February 2026, the Court issued orders, by consent, that the status quo be maintained, and on19th March 2026, directions were made that the Preliminary Objection be disposed of first and be heard by way of written submissions.
6. The preliminary objection is based firstly on a plea of limitation. It was the 1 st Defendant’s case that the suit was bad in law and statute-barred by dint of the provisions of sections 4(2) and 26 of the Limitation of Actions Act Cap 22 in so far as the alleged acts of fraud were discovered on 28 th of January, 2020 and the instant suit filed on 13 th November, 2025, well outside the statutory limitation of 3 years to the commencement of the suit. That from the pleadings filed by the Plaintiffs, the alleged fraud forming the substratum of the suit was discovered on the 28 th of January, 2020 and the instant suit was filed on 14 th November, 2025.
7. Relying on the case of D.T. Dobie & Company (Kenya) Ltd. =VS= Muchina (1982 – 1988) where it was held that the Court should aim at sustaining rather than terminating a suit and that a suit should only be struck out if it is so weak that it is beyond redemption and incurable by amendment, Counsel for the 1 st Defendant submitted that in the instant suit, the claim is bereft of merit and incurable as in the absence of leave to extend the timeline, the claim is a non-starter in limine robbing the Court of jurisdiction.
8. On behalf of the Plaintiffs, it was submitted that to ascertain when fraud was discovered, the Court needs to inquire about the facts and do a very thorough analysis before arriving at a finding on when fraud was discovered. That the amended Plaint dated 29 th January, 2026 does not disclose when the fraud was discovered. Counsel for the Plaintiffs submitted that the Preliminary Objection does not pass the test in the Mukisa Biscuit Case . That the claim is more towards recovery of land which was subdivided and transferred fraudulently, for which the limitation period under section 7 of the Limitation of Actions Act is 12 years. Counsel relied on the cases of Tony Obare Ogolla & another vs Jacob Olang Ajero [2020] eKLR, and submitted that the issue of limitation should not be determined at a preliminary point as it requires interrogation of the evidence.
9. The preliminary objection was also based on the ground that the Honourable Court lacks jurisdiction to hear and determine the suit in so far as the dispute disclosed in the pleadings relates to a succession dispute in respect of the estate of the deceased, as the matter calls for determination of;
a) The identification of the lawful beneficiaries/ dependents of the deceased,
b) The mode of distribution of the estate of the deceased
c) The property, validity, review, annulment and/or effects of gifts made during the lifetime of the deceased and/or the administration and transmission of estate property, all of which fall within the mandate of the Succession Court under the Law of Succession Act.
That Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act confine the jurisdiction of this Court to disputes relating to environment and use, occupation of and title to land and not succession.
10. It was submitted on behalf of the 1 st Defendant that the Court is to decide whether parcel numbers 1582 and 1583 were gifts inter vivos and how the estate of the late should be distributed or if the same should be distributed as the deceased wished. Counsel relied on the case of Republic =VS= Karisa Chengo & 2 others [2017] eKLR on the limits of jurisdictional authority and urged the Court to find that the issues in the suit do not fall within the jurisdiction of the Court.
11. On behalf of the Plaintiff, it was submitted that the claim herein involves land fraud and title nullification, which is under the exclusive original jurisdiction of the Environment and Land Court. That the suit does not call upon the Court to decide matters of probate at all. That the Court has jurisdiction to entertain the claim.
Determination
12. The threshold for Preliminary Objections was set in the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E. A 696, where it was held that:
“…a Preliminary Objection consists of a point of law which has been pleaded, or which 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 a contract giving rise to the suit to refer the dispute to arbitration.’’
The court further held 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 has to be ascertained or if what is sought is the exercise of judicial discretion.’’
13. Thus, a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit/case if argued as a pure point of law and must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained; or if what is sought is the exercise of the court’s discretion.
14. The issues raised in this case are limitation and jurisdiction. These are pure points of law flowing from the pleadings filed so far. I find that the objection raised herein meets the threshold for preliminary objections.
15. Regarding the merits of the Preliminary Objection, it is clear from the plaint that the Plaintiffs’ claim contained in the amended Plaint dated 29 th January, 2026 is based on the tort of fraud. Fraud is defined in Black’s Law Dictionary, 11 th Edition, Bryan A. Garner, page 802, as
“a knowing misrepresentation or a knowing concealment of a material fact made to induce one to act to his detriment.”
16. In paragraph 7 of the Plaint, the plaintiff pleaded that the Defendants colluded to fraudulently subdivide the suit land and register some of the resultant parcels in favour of the 1 st Defendant and that the Defendants concealed their actions until January 2020, when the Plaintiffs discovered the same. Paragraph 9 details the particulars of the alleged fraud and irregularity. Prayer 1 of the amended plaint seeks a declaration that the subdivision and transfer were fraudulent, illegal, null and void; prayer 2 seeks cancellation of the fraudulently transferred title while prayer 3 seeks restoration of the fraudulently subdivided parcel.
17. It is correct that Section 4 of the Limitation of Actions Act provides the limitation period for actions based on contract, tort and certain other actions. Section 4 (2) of the Act provides that:
“an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”
18. In paragraph 7 of the Amended Plaint, the Plaintiffs pleaded that it was on 28 th January, 2020 when they obtained the green card in respect of the suit land and discovered the fraudulent and irregular actions of the Defendants which had taken place much earlier. In accordance with the provisions of section 4(2), the suit ought to have been filed within 3 years from the date the fraud is alleged to have been committed.
19. Section 26 of the same Act provides for extension of limitation period in case of fraud or mistake as follows: -
“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 plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:
Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or
(ii) in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.”
20. Pursuant to the above-quoted provisions of law, time began to run not from the date the actual acts complained of happened but from the date the same were discovered by the Plaintiffs. From 28th January 2020, when the fraud was discovered, to November 2025, when the suit was filed, more than the limitation period of 3 years had elapsed, and the Plaintiffs ought to have sought extension of time as applicable. A plea of limitation is a preliminary matter which ought to be raised and taken at the very outset of a suit. I find that the suit herein was filed out of time and that the preliminary objection has ben properly raised.
21. On the issue of jurisdiction, the copy of the register (green card) in respect of the suit land, filed with the plaint, shows that the suit land parcel number KERICHO/KIMULOT/158 ceased to exist on 21 st July 2004, when the title was closed upon subdivision. From the Grant of Letters of Administration Ad Litem dated 29 th October 2025 filed with the plaint, the deceased died on 24 th September 2008. This shows that the subdivision, whether fraudulent or not, happened in the lifetime of the deceased. Parcel number KERICHO/KIMULOT/158 cannot therefore be part of the estate of the deceased as the suit land left the deceased’s name in his lifetime. The land is therefore not subject to the Law of Succession Act unless the fraud is proved and the suit property reverted to the name of the deceased. My finding is that the Court has jurisdiction to hear and determine the suit, if it had been filed within the limitation period.
22. Although courts should, as much as possible, aim to sustain suits rather than strike them out summarily, where a suit is so irredeemably defective and incompetent, the court has no option but to end it summarily. In the present case, there is no amount of amendment and/or adjustment that can bring the suit within the limitation period.
23. For the foregoing reasons, the Court finds that the Preliminary Objection has merit and hereby upholds it with the result that the suit is struck out for being time-barred by statute. The Plaintiff has the liberty to seek leave and/or extension of time to file suit out of time, as and if the law shall permit. The costs of the suit are awarded to the 1 st Defendant.
Orders accordingly.
Ruling delivered, dated and signed at Bomet and delivered virtually this 17 th Day of September, 2026.
HON E. ASATI,
JUDGE.
In the presence of:
Court Assistant
For the Plaintiffs/Respondents
For the 1 st Defendant.
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2. The Plaintiffs filed the suit in their capacity as the Administrators of the Estate of Kipkoech Arap Milgo, deceased, vide the Plaint dated 13 th November, 2025. They claim that the deceased was the legal proprietor of a parcel of land known as KERICHO/KIMULOT/158 measuring approximately 11.6 hectares (herein called the suit property). They plead that on 28 th January, 2020, they discovered that the 1 st Defendant, in collusion with the 2 nd Defendant (the Land Registrar), had fraudulently and irregularly subdivided the suit property into KERICHO/KIMULOT/1581, 1582, 1583 and 1584 (herein called the resultant parcels) and caused parcel numbers KERICHO/KIMULOT/1582 and 1583 to be registered in the 1 st Defendant’s name.
3. The Plaintiffs therefore sought orders declaring that the sub-division of the suit land and creation of the resultant parcels was fraudulent, illegal, null and void, an order for cancellation of land parcel numbers KERICHO/KIMULOT/1582 and 1583, an order for restoration of the suit land, a permanent injunction and costs of the suit.
4. Together with the Plaint, the Plaintiffs filed an Application under Certificate of Urgency vide the Notice of Motion dated 13 th November, 2025 seeking orders of temporary injunction and inhibition.
5. In response to the Plaintiffs’ claim, the 1 st Defendant filed the 1 st Defendant’s Statement of Defence dated 17 th March, 2026 and a Notice of Preliminary Objection of even date. On 25 th February 2026, the Court issued orders, by consent, that the status quo be maintained, and on19th March 2026, directions were made that the Preliminary Objection be disposed of first and be heard by way of written submissions.
6. The preliminary objection is based firstly on a plea of limitation. It was the 1 st Defendant’s case that the suit was bad in law and statute-barred by dint of the provisions of sections 4(2) and 26 of the Limitation of Actions Act Cap 22 in so far as the alleged acts of fraud were discovered on 28 th of January, 2020 and the instant suit filed on 13 th November, 2025, well outside the statutory limitation of 3 years to the commencement of the suit. That from the pleadings filed by the Plaintiffs, the alleged fraud forming the substratum of the suit was discovered on the 28 th of January, 2020 and the instant suit was filed on 14 th November, 2025.
7. Relying on the case of D.T. Dobie & Company (Kenya) Ltd. =VS= Muchina (1982 – 1988) where it was held that the Court should aim at sustaining rather than terminating a suit and that a suit should only be struck out if it is so weak that it is beyond redemption and incurable by amendment, Counsel for the 1 st Defendant submitted that in the instant suit, the claim is bereft of merit and incurable as in the absence of leave to extend the timeline, the claim is a non-starter in limine robbing the Court of jurisdiction.
8. On behalf of the Plaintiffs, it was submitted that to ascertain when fraud was discovered, the Court needs to inquire about the facts and do a very thorough analysis before arriving at a finding on when fraud was discovered. That the amended Plaint dated 29 th January, 2026 does not disclose when the fraud was discovered. Counsel for the Plaintiffs submitted that the Preliminary Objection does not pass the test in the Mukisa Biscuit Case . That the claim is more towards recovery of land which was subdivided and transferred fraudulently, for which the limitation period under section 7 of the Limitation of Actions Act is 12 years. Counsel relied on the cases of Tony Obare Ogolla & another vs Jacob Olang Ajero [2020] eKLR, and submitted that the issue of limitation should not be determined at a preliminary point as it requires interrogation of the evidence.
9. The preliminary objection was also based on the ground that the Honourable Court lacks jurisdiction to hear and determine the suit in so far as the dispute disclosed in the pleadings relates to a succession dispute in respect of the estate of the deceased, as the matter calls for determination of;
a) The identification of the lawful beneficiaries/ dependents of the deceased,
b) The mode of distribution of the estate of the deceased
c) The property, validity, review, annulment and/or effects of gifts made during the lifetime of the deceased and/or the administration and transmission of estate property, all of which fall within the mandate of the Succession Court under the Law of Succession Act.
That Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act confine the jurisdiction of this Court to disputes relating to environment and use, occupation of and title to land and not succession.
10. It was submitted on behalf of the 1 st Defendant that the Court is to decide whether parcel numbers 1582 and 1583 were gifts inter vivos and how the estate of the late should be distributed or if the same should be distributed as the deceased wished. Counsel relied on the case of Republic =VS= Karisa Chengo & 2 others [2017] eKLR on the limits of jurisdictional authority and urged the Court to find that the issues in the suit do not fall within the jurisdiction of the Court.
11. On behalf of the Plaintiff, it was submitted that the claim herein involves land fraud and title nullification, which is under the exclusive original jurisdiction of the Environment and Land Court. That the suit does not call upon the Court to decide matters of probate at all. That the Court has jurisdiction to entertain the claim.
Determination
12. The threshold for Preliminary Objections was set in the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E. A 696, where it was held that:
“…a Preliminary Objection consists of a point of law which has been pleaded, or which 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 a contract giving rise to the suit to refer the dispute to arbitration.’’
The court further held 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 has to be ascertained or if what is sought is the exercise of judicial discretion.’’
13. Thus, a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit/case if argued as a pure point of law and must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained; or if what is sought is the exercise of the court’s discretion.
14. The issues raised in this case are limitation and jurisdiction. These are pure points of law flowing from the pleadings filed so far. I find that the objection raised herein meets the threshold for preliminary objections.
15. Regarding the merits of the Preliminary Objection, it is clear from the plaint that the Plaintiffs’ claim contained in the amended Plaint dated 29 th January, 2026 is based on the tort of fraud. Fraud is defined in Black’s Law Dictionary, 11 th Edition, Bryan A. Garner, page 802, as
“a knowing misrepresentation or a knowing concealment of a material fact made to induce one to act to his detriment.”
16. In paragraph 7 of the Plaint, the plaintiff pleaded that the Defendants colluded to fraudulently subdivide the suit land and register some of the resultant parcels in favour of the 1 st Defendant and that the Defendants concealed their actions until January 2020, when the Plaintiffs discovered the same. Paragraph 9 details the particulars of the alleged fraud and irregularity. Prayer 1 of the amended plaint seeks a declaration that the subdivision and transfer were fraudulent, illegal, null and void; prayer 2 seeks cancellation of the fraudulently transferred title while prayer 3 seeks restoration of the fraudulently subdivided parcel.
17. It is correct that Section 4 of the Limitation of Actions Act provides the limitation period for actions based on contract, tort and certain other actions. Section 4 (2) of the Act provides that:
“an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”
18. In paragraph 7 of the Amended Plaint, the Plaintiffs pleaded that it was on 28 th January, 2020 when they obtained the green card in respect of the suit land and discovered the fraudulent and irregular actions of the Defendants which had taken place much earlier. In accordance with the provisions of section 4(2), the suit ought to have been filed within 3 years from the date the fraud is alleged to have been committed.
19. Section 26 of the same Act provides for extension of limitation period in case of fraud or mistake as follows: -
“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 plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:
Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or
(ii) in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.”
20. Pursuant to the above-quoted provisions of law, time began to run not from the date the actual acts complained of happened but from the date the same were discovered by the Plaintiffs. From 28th January 2020, when the fraud was discovered, to November 2025, when the suit was filed, more than the limitation period of 3 years had elapsed, and the Plaintiffs ought to have sought extension of time as applicable. A plea of limitation is a preliminary matter which ought to be raised and taken at the very outset of a suit. I find that the suit herein was filed out of time and that the preliminary objection has ben properly raised.
21. On the issue of jurisdiction, the copy of the register (green card) in respect of the suit land, filed with the plaint, shows that the suit land parcel number KERICHO/KIMULOT/158 ceased to exist on 21 st July 2004, when the title was closed upon subdivision. From the Grant of Letters of Administration Ad Litem dated 29 th October 2025 filed with the plaint, the deceased died on 24 th September 2008. This shows that the subdivision, whether fraudulent or not, happened in the lifetime of the deceased. Parcel number KERICHO/KIMULOT/158 cannot therefore be part of the estate of the deceased as the suit land left the deceased’s name in his lifetime. The land is therefore not subject to the Law of Succession Act unless the fraud is proved and the suit property reverted to the name of the deceased. My finding is that the Court has jurisdiction to hear and determine the suit, if it had been filed within the limitation period.
22. Although courts should, as much as possible, aim to sustain suits rather than strike them out summarily, where a suit is so irredeemably defective and incompetent, the court has no option but to end it summarily. In the present case, there is no amount of amendment and/or adjustment that can bring the suit within the limitation period.
23. For the foregoing reasons, the Court finds that the Preliminary Objection has merit and hereby upholds it with the result that the suit is struck out for being time-barred by statute. The Plaintiff has the liberty to seek leave and/or extension of time to file suit out of time, as and if the law shall permit. The costs of the suit are awarded to the 1 st Defendant.
Orders accordingly.
Ruling delivered, dated and signed at Bomet and delivered virtually this 17 th Day of September, 2026.
HON E. ASATI,
JUDGE.
In the presence of:
Court Assistant
For the Plaintiffs/Respondents
For the 1 st Defendant.
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