MATHEWS CHARLES ONYANGO VS State Law Office AND GEORGE OMONDI OBELL AND 2 Others

'

This ruling is in respect of the Notice of Motion application dated 9^th June, 2025 filed by the 1^st and 2^nd Defendants and the Preliminary Objection raised by the 3^rd Defendant vide the Notice of Preliminary Objection dated 19^th June, 2025.

The Preliminary Objection was raised on the grounds that the Plaintiff’s suit was time barred under the provisions of section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya the same having been filed 17 years after the cause of action arose.

It was submitted on behalf of the 3^rd Defendant that the suit property was sold by public action in the year 2008 following the Plaintiff’s default in servicing the loan facility. That the Plaintiff’s reliance on section 26 of the Limitation of Actions Act was misconceived. That the Plaintiff’s own evidence discloses irreconcilable contradictions which discredit the Plaintiff’s claim of late discovery of the fraud. That the Plaintiff has not placed before court any credible evidence of how or when the alleged fraud was discovered. That the Plaintiff cannot rely on his own inaction or mere allegations of fraud to circumvent the clear statutory timelines set under section 7 of the Limitation of Actions Act.

Counsel urged the court to uphold the Preliminary Objection and strike out the suit.

On behalf of the Plaintiff, it was submitted vide the written submissions dated 7^th August, 2025 that where fraud is alleged, time begins to run from when the Plaintiff discovered the fraud.

Counsel relied on the case Justus Tureti Obara -vs- Peter Koipetai Nengisoi (2014)eKLR and urged the court to strike out the Preliminary Objection with costs.

The law on Preliminary Objections as held in the case of Mukisa Biscuit Manufacturing Company Ltd -vs- West End Distributors [1969]EA 696  relied on by the Plaintiff. Is that

1. A Preliminary Objection must be a pure point of law which if argued may dispose of the entire suit.
2. Preliminary Objection should be based on the presumption that the pleadings and the facts as pleaded by the opposite side are correct or agreed facts.
3. A Preliminary Objection cannot be entertained where;
4. The facts are disputed/contested.
5. The facts are liable to be contested.

in the present case, the pleadings referred to is the plaint filed by the plaintiff and the objection is based on a plea of limitation. While section 7 of the Limitation of Actions Act sets the time of filing suits for recovery of land at 12 years, section 26 provides for extension of the limitation period in cases of fraud or mistake in that time begins to run only from the date the fraud or mistake is discovered by the claimant.

In paragraph 8 of the plaint, the Plaintiff pleaded that it was in the year 2024 when he was shocked to find from the 4^th Defendant that the suit property was registered in the name of the 1^st Defendant who had allegedly acquired it from the 2^nd Defendant.

On the face of the pleadings, the date of discovery of the fraud was in the year 2024. Whether this is true or whether indeed there was fraud, will be established upon interrogation of the evidence at the hearing.

The court can only go as far as the pleadings so far filed in determining the preliminary objection.

The second matter is the Notice of Motion application dated 9^th June, 2025 filed on behalf of the 1^st and 2^nd Defendants.

The application seeks that the suit be struck out for want of pecuniary jurisdiction or in the alternative the suit be transferred to the Magistrate’s court at Kisumu for hearing and determination.

I have considered the grounds upon which the application was brought namely; that there is no evidence that the value of the suit property is beyond 20,000,000/-, that the suit property had not been shown to exceed the pecuniary jurisdiction of the Magistrate’s court, that the Kisumu Magistrate’s court is duly gazetted to hear and determine land matters of up to Kshs 20,000,000, that the plaintiff had not demonstrated why the suit was filed in the Environment and Land Court instead of the Kisumu Magistrate’s court.

No current valuation was provided for the property. The fact that the suit land was charged to the 3^rd Defendant for a consideration of Kshs 120,000/ in the year 1986 as pleaded in paragraph 7 of the plaint is no indication of the value of the property in 1986 or currently.

No grounds have been demonstrated for to warrant an order for striking out of the suit and no valuation has been presented to demonstrate that the value of the suit property is within the jurisdiction of the Magistrate’s Court.

For the foregoing reasons, the court finds that both the Preliminary Objection and the application lack merit and hereby dismisses them. Each party to bear own costs.

Orders accordingly.

Ruling read and signed at Kisumu and delivered virtually this 27^th November day of November, 2025.

E. ASATI,

JUDGE.

In the presence of:                   

Maureen: Court Assistant.

Oriwa h/b for Omina for the Plaintiff.                  

Ojanga h/b for Majani for the 1^st and 2^nd Defendants /applicants.

Odhiambo h/b for Bwire for the 3^rd Defendant.

No appearance for the 4^th Defendant.

'