A. Background
1. The Plaintiff commenced this suit vide a plaint dated 29th January 2021 seeking, inter alia, orders for cancellation of Land Titles Numbers MBETI/GACHOKA/2636 and 2637, alleged to have been fraudulently derived from the original parcel MBETI/GACHOKA/718.
2. The Defendants entered appearance and filed a statement of defence dated 26th February 2024. At paragraph 9 thereof, the Defendants pleaded that the suit was bad in law, filed against wrong parties, and was time-barred under the Limitation of Actions Act, and that a preliminary point of law would be raised.
3. When the matter came up for hearing on 1st October 2025, counsel for the Defendants formally indicated intention to prosecute the preliminary objection. By consent of the parties, the objection was canvassed by way of written submissions.
The Preliminary Objection
4. The Defendants’ preliminary objection rests on three principal grounds:
a. That the suit is statute-barred under Section 7 of the Limitation of Actions Act;
b. That the Defendants are wrongly sued; and
c. That the Plaintiff’s claim ought to have been ventilated within Succession Cause No. 108 of 2008, either by protest or by an application for revocation of grant under Section 76 of the Law of Succession Act.
Defendants’ Submissions
5. The Defendants contend that the alleged cause of action arose in or about the year 2007 when the original parcel MBETI/GACHOKA/718 was transferred to the late Elias Njiru Chandi, and subsequently subdivided into parcels numbers 2635–2637.
6. It was argued that the present suit was filed more than fourteen (14) years after the alleged transfer and is therefore barred by limitation.
7. The Defendants further submit that they could not have participated in any fraudulent transfer as they were not parties to the original transaction, and that their registration arose through a confirmed grant issued in Succession Cause No. 108 of 2008.
8. They urged the Court to strike out the suit at this preliminary stage with costs.
Plaintiff’s Submissions
9. The Plaintiff opposed the objection and submitted that it does not meet the threshold of a proper preliminary objection.
10. On the question of wrong parties, the Plaintiff argued that ownership and legitimacy of title are substantive issues requiring evidence, and cannot be determined preliminarily.
11. On limitation, the Plaintiff submitted that his claim is founded on fraud and forgery, and that the impugned transfers occurred long after the death of the original proprietor, Cyrus Ngari Rugano, who died in 1993, and in circumstances where no lawful succession had been undertaken.
12. The Plaintiff further contended that fraud was only discovered in recent years upon confirmation of grant in his favour, thus bringing the claim within the purview of Section 26 of the Limitation of Actions Act.
13. It was argued that issues of fraud, forgery, legality of transfers, and the propriety of titles are evidentiary in nature and incapable of determination through a preliminary objection.
Issues for Determination
14. The Court distills the following issues for determination:
a. Whether the preliminary objection meets the threshold of a pure point of law;
b. Whether the suit is time-barred under the Limitation of Actions Act;
c. Whether the suit is incompetent for having been filed against the wrong parties or outside succession proceedings.
Legal Analysis
(i) Nature of a Preliminary Objection
15. A preliminary objection must be founded on a pure point of law, assumed to be correct on the basis of the pleadings alone, and must not require ascertainment of facts or exercise of judicial discretion.
16. Where determination of an objection requires interrogation of contested facts, examination of documents, or assessment of evidence, such an objection ceases to be preliminary and must await full trial.
(ii) Limitation of Actions and Fraud
17. Section 7 of the Limitation of Actions Act prescribes a twelve-year limitation period for actions to recover land. However, Section 26 of the same Act provides a statutory exception where the action is based on fraud or mistake, postponing the commencement of limitation until discovery of the fraud.
18. In the present case, the Plaintiff has specifically pleaded fraud and forgery, alleging that land belonging to a deceased person was transferred and registered in favour of another deceased person, in circumstances that are, on the face of the pleadings, legally questionable.
19. Whether the alleged fraud occurred, when it occurred, who participated in it, and when it was discovered, are matters that require evidentiary proof. These cannot be conclusively determined at a preliminary stage without taking evidence.
20. Comparative jurisprudence from common law jurisdictions is consistent that limitation defences premised on fraud rarely succeed as preliminary objections where discovery and concealment are contested factual questions.
(iii) Wrong Parties and Succession Proceedings
21. The Defendants’ argument that the claim ought to have been pursued within succession proceedings is, with respect, misconceived.
22. While succession courts are mandated to distribute estates of deceased persons, they lack jurisdiction to determine contested questions of title, fraud, or ownership of land as between estates and third parties.
23. Claims seeking cancellation of title on grounds of fraud properly fall within the jurisdiction of this Court.
24. Further, misjoinder or non-joinder of parties does not render a suit incompetent, and the Civil Procedure framework permits joinder, substitution, or amendment at any stage of proceedings.
G. Determination
25. Upon careful consideration, the Court finds that:
a. The preliminary objection raises contested issues of fact, particularly relating to fraud, discovery, ownership, and legality of transfers;
b. The plea of limitation cannot be sustained at this stage in light of the pleaded fraud and the statutory exception under Section 26 of the Limitation of Actions Act;
c. The question of proper parties and the relationship between succession proceedings and land disputes requires full evidentiary interrogation.
26. Consequently, the preliminary objection does not meet the legal threshold and is untenable.
H. Disposition
27. The Defendants’ preliminary objection is hereby dismissed in its entirety.
28. Costs of the preliminary objection shall be in the cause.
29. The suit shall proceed to full hearing on merits.
DATED, SIGNED AND DELIVERED AT EMBU THIS 17TH DAY OF FEBRUARY, 2026,
.........................................................
E. C CHERONO
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. Mr. Kiongo H/B Joe Kathungu for the Defendant.
2. Mr. Kahuthu for the Plaintiff
3. Diana C/A
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