1. On February 10, 2025, the Plaintiffs filed this suit by way of the Plaint dated February 5, 2025, seeking, among other reliefs:
a) A declaration that the Defendants herein are obligated in their capacity as the Administrators of the Estate of the Vendor-Anthony Paul Pape to complete the transfer of property known as Plot No. 9138/III/MN, Plot No. 9139/III/MN, and Plot No. 9140/III/MN to the Plaintiffs.
b) An order of specific performance compelling the defendants to execute the necessary documents to effect the transfer of the suit properties, or, in the alternative, an order to issue authorizing the Deputy Registrar of this court to execute the said instruments.
c) Costs.
2. The premise is that on December 13, 2011, the Plaintiffs and the Deceased Vendor agreed to purchase property known as L.R. Number 840 (Original No. 490/3) in Section III Mainland North, covering about ten acres, for Kshs. 45,000,000.00.
3. On April 12, 2012, the Plaintiffs and the Deceased Vendor signed a further agreement, reducing the property being purchased from the original ten (10) acres to five (5) acres, and lowering the purchase price from Kshs. 45,000,000.00 to Kshs. 22,500,000.00.
4. According to the subsequent Agreement, the land was divided into Plot No. 9138/III/MN, Plot No. 9139/III/MN, and Plot No. 9140/III/MN. Certificates for these parcels of land were issued to the Deceased Vendor in January 2024.
5. Before the deceased could transfer property, he died in August 2014.
6. In the period between his death and the filing of the suit, the Plaintiffs, through their Advocates on record, sought the completion of the transfers.
7. On May 3, 2024, the Plaintiffs’ Advocates on record received correspondence from the former Advocates of the 1st and 2nd Defendant, Ms. George Odull & Associates Advocates, who requested and obtained transfer documents related to the suit property to execute on behalf of the Estate of the Deceased Vendor, Anthony Paul Pape.
8. Despite this, the 1st and 2nd Defendants failed to execute the transfer documents, which led to the current suit.
9. In response to the filed suit, the 1st and 2nd Defendants have raised a Preliminary Objection (PO) dated April 2, 2025, addressing the issue of limitation of actions.
10. The court instructed the parties' counsels to present their points of view on the PO through written submissions. They complied.
11. Counsels for the parties cited the relevant provisions of the law regarding how to determine a PO based on the limitation of actions, along with the applicable judicial precedents, for which the court expresses its gratitude.
12. The issues I outline for the court's decision are whether the PO is sustainable and who should bear the costs of this litigation at this stage. The court's decision on the PO will determine the future direction of this case.
13. The principles on which this court is asked to evaluate the validity of a notice of PO were established in the well-known case, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. This case outlined the criteria for a PO, which include raising a clear point of law, demonstrating the accuracy of all facts pleaded by the opposing side, and showing that there are no facts requiring further investigation.
14. The Court of Appeal in Attorney General & Ministry of State for Immigration & Registrar of Persons v Andrew Maina Githinji & Zachary Mugo Kamunjiga [2016] KECA 817 (KLR) reiterated the same position on what would constitute a PO and held as follows:
“The test to be applied in determining whether the appellants’ Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (supra). That is, first, that the Preliminary Objection raises a pure point of law, second, that there is demonstration that all the facts pleaded by the other side are correct; and third, that there is no fact that needs to be ascertained.”
15. The thrust of a PO in this matter rests squarely on the jurisdiction of this court, as held by Nyarangi J.A. in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR:
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
16. The Defendants in the PO argue that the lawsuit concerns land recovery, which, under Section 7 of the Limitation of Actions Act, must be filed within 12 years of the cause of action arising. The sale agreement was signed on December 13, 2011, with an addendum added on April 12, 2012. The completion date was set for 60 days from April 4, 2012, which was June 11, 2012. Therefore, the deadline to file suit should have been June 11, 2024—12 years after the alleged cause of action occurred.
17. According to the Defendants, the filing of this lawsuit on February 5, 2025, was legally late. See Koech (Suing as Legal Personal Representative and Beneficiary of the Estate of the Late Kipkoech arap Mutai) v Siele & 18 others [2023] KEELC 861 (KLR).
18. Conversely, the Plaintiffs argue that to raise a defense that a matter is time-barred successfully, the court must determine when the cause of action began. I agree with this view as explained in the case of Kiluwa Limited and another v Business Liaison Company Limited & 3 others (Petition 14 of 2017) [2021] KESC 37 (KLR) (6 August 2021) (Judgment):
“To be successfully raised against a litigant, a court must determine when the time started running. In other words, the question as to when the cause of action arose has to be settled so as to shut out a litigant on grounds of passage of time. These principles/conditions were never at play in the appeal, nor are they evident on the face of the appellate court’s conclusions. It is not lost to us, that the gravamen of the appellants’ grievance, was the allocation of the disputed land by the 3rd respondent to the 1st and 2nd respondents and consequent erection of the wall thereon by the latter. Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall. We therefore find no basis upon which the appellants can be said to have slept on their rights.”
19. The Plaintiffs believe they are entitled to have the transfer documents signed, which the 1st and 2nd Defendants agreed to complete in May 2024, about a year ago, through the law firm of Ms. George Odull & Associates Advocates. Their failure to do so led to the filing of this lawsuit. Therefore, the cause of action arose in 2024. They cite the decision in Bhupinder Singh Dogra v Coast Development Authority [2021] KEHC 7822 (KLR), with which I concur, where the court adopted the decision in Shire v Thabiti Finance Co. Ltd [2002] 1 EA 279 and confirmed that:
“The decision in Shire (supra) is binding upon this court. I am also convinced with the reasoning and would agree with it wholly. An acknowledgement in the absence of a contrary provision in the statute gives an already barred action a new birthday. The action is revived de novo. The acknowledgement need not be made when the time is running. It may be made after expiry of time and will still suit the purposes of Section 23 of the Limitations of Actions Act.”
21. The Plaintiffs submit to the court that, in this case, once the need to execute the transfer documents for the Estate of Anthony Paul Pape on May 3, 2024, was acknowledged, the relevant timeframe restarts accordingly.
22. I agree with the Plaintiffs that the orders sought from this court concern the execution of the transfer documents, and that the 1st and 2nd Defendants defaulted on executing them, as acknowledged by the letter dated May 3, 2024. Accordingly, we have a new milestone for what was otherwise a stale claim.
23. Based on the foregoing, the 1st and 2nd Defendants’ Notice of Preliminary Objection dated April 2, 2025, is hereby dismissed with costs to the Plaintiffs.
Dated, signed, and delivered virtually at Malindi on 10th July, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Kimura HB for Kibara for the Plaintiffs
Mr. Mramba for the 2nd Defendant
Happy: Court Assistant
a) A declaration that the Defendants herein are obligated in their capacity as the Administrators of the Estate of the Vendor-Anthony Paul Pape to complete the transfer of property known as Plot No. 9138/III/MN, Plot No. 9139/III/MN, and Plot No. 9140/III/MN to the Plaintiffs.
b) An order of specific performance compelling the defendants to execute the necessary documents to effect the transfer of the suit properties, or, in the alternative, an order to issue authorizing the Deputy Registrar of this court to execute the said instruments.
c) Costs.
2. The premise is that on December 13, 2011, the Plaintiffs and the Deceased Vendor agreed to purchase property known as L.R. Number 840 (Original No. 490/3) in Section III Mainland North, covering about ten acres, for Kshs. 45,000,000.00.
3. On April 12, 2012, the Plaintiffs and the Deceased Vendor signed a further agreement, reducing the property being purchased from the original ten (10) acres to five (5) acres, and lowering the purchase price from Kshs. 45,000,000.00 to Kshs. 22,500,000.00.
4. According to the subsequent Agreement, the land was divided into Plot No. 9138/III/MN, Plot No. 9139/III/MN, and Plot No. 9140/III/MN. Certificates for these parcels of land were issued to the Deceased Vendor in January 2024.
5. Before the deceased could transfer property, he died in August 2014.
6. In the period between his death and the filing of the suit, the Plaintiffs, through their Advocates on record, sought the completion of the transfers.
7. On May 3, 2024, the Plaintiffs’ Advocates on record received correspondence from the former Advocates of the 1st and 2nd Defendant, Ms. George Odull & Associates Advocates, who requested and obtained transfer documents related to the suit property to execute on behalf of the Estate of the Deceased Vendor, Anthony Paul Pape.
8. Despite this, the 1st and 2nd Defendants failed to execute the transfer documents, which led to the current suit.
9. In response to the filed suit, the 1st and 2nd Defendants have raised a Preliminary Objection (PO) dated April 2, 2025, addressing the issue of limitation of actions.
10. The court instructed the parties' counsels to present their points of view on the PO through written submissions. They complied.
11. Counsels for the parties cited the relevant provisions of the law regarding how to determine a PO based on the limitation of actions, along with the applicable judicial precedents, for which the court expresses its gratitude.
12. The issues I outline for the court's decision are whether the PO is sustainable and who should bear the costs of this litigation at this stage. The court's decision on the PO will determine the future direction of this case.
13. The principles on which this court is asked to evaluate the validity of a notice of PO were established in the well-known case, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. This case outlined the criteria for a PO, which include raising a clear point of law, demonstrating the accuracy of all facts pleaded by the opposing side, and showing that there are no facts requiring further investigation.
14. The Court of Appeal in Attorney General & Ministry of State for Immigration & Registrar of Persons v Andrew Maina Githinji & Zachary Mugo Kamunjiga [2016] KECA 817 (KLR) reiterated the same position on what would constitute a PO and held as follows:
“The test to be applied in determining whether the appellants’ Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (supra). That is, first, that the Preliminary Objection raises a pure point of law, second, that there is demonstration that all the facts pleaded by the other side are correct; and third, that there is no fact that needs to be ascertained.”
15. The thrust of a PO in this matter rests squarely on the jurisdiction of this court, as held by Nyarangi J.A. in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR:
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
16. The Defendants in the PO argue that the lawsuit concerns land recovery, which, under Section 7 of the Limitation of Actions Act, must be filed within 12 years of the cause of action arising. The sale agreement was signed on December 13, 2011, with an addendum added on April 12, 2012. The completion date was set for 60 days from April 4, 2012, which was June 11, 2012. Therefore, the deadline to file suit should have been June 11, 2024—12 years after the alleged cause of action occurred.
17. According to the Defendants, the filing of this lawsuit on February 5, 2025, was legally late. See Koech (Suing as Legal Personal Representative and Beneficiary of the Estate of the Late Kipkoech arap Mutai) v Siele & 18 others [2023] KEELC 861 (KLR).
18. Conversely, the Plaintiffs argue that to raise a defense that a matter is time-barred successfully, the court must determine when the cause of action began. I agree with this view as explained in the case of Kiluwa Limited and another v Business Liaison Company Limited & 3 others (Petition 14 of 2017) [2021] KESC 37 (KLR) (6 August 2021) (Judgment):
“To be successfully raised against a litigant, a court must determine when the time started running. In other words, the question as to when the cause of action arose has to be settled so as to shut out a litigant on grounds of passage of time. These principles/conditions were never at play in the appeal, nor are they evident on the face of the appellate court’s conclusions. It is not lost to us, that the gravamen of the appellants’ grievance, was the allocation of the disputed land by the 3rd respondent to the 1st and 2nd respondents and consequent erection of the wall thereon by the latter. Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall. We therefore find no basis upon which the appellants can be said to have slept on their rights.”
19. The Plaintiffs believe they are entitled to have the transfer documents signed, which the 1st and 2nd Defendants agreed to complete in May 2024, about a year ago, through the law firm of Ms. George Odull & Associates Advocates. Their failure to do so led to the filing of this lawsuit. Therefore, the cause of action arose in 2024. They cite the decision in Bhupinder Singh Dogra v Coast Development Authority [2021] KEHC 7822 (KLR), with which I concur, where the court adopted the decision in Shire v Thabiti Finance Co. Ltd [2002] 1 EA 279 and confirmed that:
“The decision in Shire (supra) is binding upon this court. I am also convinced with the reasoning and would agree with it wholly. An acknowledgement in the absence of a contrary provision in the statute gives an already barred action a new birthday. The action is revived de novo. The acknowledgement need not be made when the time is running. It may be made after expiry of time and will still suit the purposes of Section 23 of the Limitations of Actions Act.”
21. The Plaintiffs submit to the court that, in this case, once the need to execute the transfer documents for the Estate of Anthony Paul Pape on May 3, 2024, was acknowledged, the relevant timeframe restarts accordingly.
22. I agree with the Plaintiffs that the orders sought from this court concern the execution of the transfer documents, and that the 1st and 2nd Defendants defaulted on executing them, as acknowledged by the letter dated May 3, 2024. Accordingly, we have a new milestone for what was otherwise a stale claim.
23. Based on the foregoing, the 1st and 2nd Defendants’ Notice of Preliminary Objection dated April 2, 2025, is hereby dismissed with costs to the Plaintiffs.
Dated, signed, and delivered virtually at Malindi on 10th July, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Kimura HB for Kibara for the Plaintiffs
Mr. Mramba for the 2nd Defendant
Happy: Court Assistant