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Court of AppealAllowedCivil Appeal (number not stated in judgment)

Kabogo v Gitau (Civil Appeal 82 of 2019) [2025] KECA 193 (KLR)

Court of Appeal of Kenya
7 February 2025
ALAli-AroniAMA.O. MucheluleGOG. V. Odunga
5,826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal revived a land fraud and trust claim against Kabogo, ruling it must go to a full hearing rather than be struck out early.

What this practically means

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Executive summary

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The appellant, Kimani Kabogo, sued his uncle, William Kabogo Gitau, claiming damages of Kshs.387,875,000 for fraud and breach of an oral trust under which the respondent was allegedly to hold three parcels of land (LR.Nos.12825/27, 12825/33 and 12825/34) for their joint benefit after paying off bank loans. The respondent filed a preliminary objection arguing the suit was statute barred under section 4 of the Limitation of Actions Act and offended section 3(3) of the Law of Contract Act as the claim rested on an oral agreement over land. By a ruling dated 10th December 2018, Gacheru, J upheld the objections and struck out the suit with costs. On appeal, the Court of Appeal first held that the appellant could not raise new issues - adverse possession, unjust enrichment and Order 11 non-compliance - that had not featured in the decision appealed against. On the two objections actually before it, the Court found the trial Judge had erred. First, having pleaded and particularised a trust and fraudulent breach of trust, the appellant fell within section 20(1) of the Limitation of Actions Act, displacing section 4, and the existence of the trust was a factual issue that could not be resolved on a preliminary objection. Secondly, the trial Judge considered only the public auction limb of the proviso to section 3(3) of the Law of Contract Act and overlooked the resulting, implied or constructive trust limb. The Court allowed the appeal, set aside the decision sustaining the preliminary objections, substituted a dismissal of the objections, directed that the matter be heard before a Judge other than Gacheru, J, and awarded the appellant the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned trial Judge was right in striking out the suit for lack of jurisdiction based on limitation of actions
  2. 2.Whether the trial court had jurisdiction to entertain the matter in light of the provisions of section 3(3) of the Law of Contract Act
  3. 3.Whether the preliminary objections were properly taken as pure points of law

Key legal issues

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01

Limitation of actions in claims founded on fraud

Holding

On the pleadings, the appellant knew or ought to have discovered the fraud by 2012, and no action was taken until 2016; but the plea of trust brought the claim within section 20(1) of the Limitation of Actions Act, making section 4 inapplicable.

Reasoning

Section 4 prescribes three years for actions founded on tort, and section 26 postpones the start of limitation until discovery of fraud. From the pleadings and witness statement the appellant knew of the fraud at the latest in 2012. However, having pleaded and particularised trust and fraudulent breach of trust, the appellant fell within section 20(1), under which no limitation period applies to a beneficiary's action for fraud or fraudulent breach of trust, so the issue required a full hearing.

p. 7
02

Whether the preliminary objections were properly taken as pure points of law

Holding

The objections were not properly taken because a primary factual issue - the existence of a trust - had first to be determined on evidence.

Reasoning

Applying Mukisa Biscuits, a preliminary objection raises a pure point of law on the assumption that all facts pleaded are correct. If the facts pleaded by the appellant were assumed correct, the three-year limitation period would not apply and the trust plea would engage the proviso to section 3(3) of the Law of Contract Act. The trial court instead made findings of fact about the transactions and the absence of a trust, which could only be determined after hearing evidence in the usual manner.

p. 9
03

Section 3(3) of the Law of Contract Act and claims based on oral agreements over land

Holding

The trial court misapprehended the proviso to section 3(3) by considering only the public auction scenario and ignoring the resulting, implied or constructive trust scenario.

Reasoning

All contracts for the disposition of an interest in land must be in writing, signed and attested, failing which they are unenforceable. However, the proviso expressly excludes the subsection from affecting the creation of a resulting, implied or constructive trust. The appellant's case was based on fraudulent breach of trust; that plea brought the transaction within the proviso, and the trial court erred by addressing only the auctioneer scenario.

p. 10
04

Raising new issues for the first time on appeal

Holding

The appellant could not raise adverse possession, unjust enrichment and Order 11 issues on appeal as they had not been raised in the decision appealed against.

Reasoning

An appeal must be directed at the decision being challenged, and rule 107 requires parties to restrict themselves to the four corners of the grounds of appeal. Raising new points would metamorphose the appellate court into a trial court and prejudice the respondent. The authorities establish that a new point is allowed only where the evidence establishes beyond doubt that the facts would support the new plea.

p. 4

Legal principles established

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  • A party cannot raise a new point for the first time on appeal where the trial court had no opportunity to consider it.
  • Where a claim pleads and particularises a trust in respect of a fraudulent breach of trust, section 20(1) of the Limitation of Actions Act displaces the limitation periods in section 4, and the issue cannot be resolved on a preliminary objection.
  • A plea of trust, unless successfully challenged, brings a transaction within the proviso to section 3(3) of the Law of Contract Act.
  • A preliminary objection cannot be sustained where the determination of the objection requires ascertainment of facts, such as the existence of a trust.
  • The proviso to section 3(3) of the Law of Contract Act imports two separate scenarios: contracts made in the course of a public auction, and transactions creating a resulting, implied or constructive trust.

Court orders

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  1. 1.The decision of the learned Judge allowing the preliminary objections was set aside
  2. 2.A decision dismissing the preliminary objections was substituted therefor
  3. 3.The matter be heard and determined in the usual manner before a Judge other than Gacheru, J
  4. 4.The costs of the appeal were awarded to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AL
majority

Wrote the judgment

AM
majority

Wrote the judgment

GO
majority

Wrote the judgment

On appeal from
High Court of Kenya
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court ruling striking out the suit (Court of Appeal Act and the Court of Appeal Rules, 2022, rule 88 and 107 invoked in the judgment)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We set aside the decision of the learned Judge made allowing the preliminary objections and substitute therefor a decision dismissing the preliminary objections. We direct that the matter be heard and determined in the usual manner before a Judge other than Gacheru, J. The costs of this appeal are awarded to the appellant.
p. 10Final orders - disposition of the appeal
In our view, the appellant, having pleaded and particularised trust, pursuant to section 20(1) of the Limitation of Actions Act, the issue ought to have gone to full hearing since section 4 of the same Act became irrelevant and inapplicable.
p. 8Trust claims and limitation of actions
The plea of trust, unless successfully challenged, would bring the transaction within the proviso to section 3(3) of the Law of Contract Act.
Law of Contract Act proviso and trusts
A preliminary objection is in the nature of what used to be called a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded are correct.
p. 8Nature of preliminary objections (Newbold, P in Mukisa Biscuits, adopted)
Accordingly, a party cannot be permitted to raise a new point for the first time on appeal, and to urge the Court to allow his appeal based on the same point, when the trial court had no opportunity to consider it and pronounce itself thereon.
p. 6New points on appeal

Issues in the judgment

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minor

The appeal was heard on 8th October 2024 and the judgment is dated 7th February 2025, but the respondent's submissions cited authorities on limitation for fraud that the appellant alleged arose in 2017 while the plaint pleaded discovery in 2006 - a chronological tension in the appellant's own grounds of appeal.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kabogo v Gitau (Civil Appeal 82 of 2019) [2025] KECA 193 (KLR)", Case Analysis (2025). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/193/eng@2025-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.