Oliech & another (Suing as an administrators of the Estate of Pius Awuoth Ogola alias Awuoth Ogola - Deceased) v Okello & 3 others (Land Case E078 of 2025) [2026] KEELC 3210 (KLR)

2. The Preliminary Objection was heard by way of written submissions. It was submitted on behalf of the 1st Defendant that the 1st Defendant raised points of law in paragraph 10 of his defence. That summons to Enter Appearance was not served upon the 1st Defendant as required by Section 19 of the Civil Procedure Act and Order 5 Rules 1 and 22 Civil Procedure Rules. That no Summons were ever extracted and served. That hence, the suit should be struck out. 3. Counsel submitted further that the suit is barred by sections 7, 9, and 26 of the Limitation of Actions Act. That the suit was filed more than 12 years after the time the right of action accrued to the plaintifi. 4. Counsel submitted that the court lacks jurisdiction to entertain the suit, since the suit concerned charges, mortgages, and the Statutory Power of Sale of the charged property. Counsel relied, among others, on the authority in the case of Co-operative Bank of Kenya Limited -vs- Patrick Kangethe Njuguna & 5 Others [2017] KECA 79 (KLR), where the Court of Appeal held that enforcement of securities, statutory power of sale, and recovery of debts were not matters within the jurisdiction of this court but of the High Court. 5. Counsel urged the court to strike out the suit. 6. No submissions were filed on behalf of the Plaintifi. The record shows that on 19/3/2026, timelines were given for parties to file submissions on the preliminary objection. It also shows that the plaintifi was represented on the said date. 7. I have considered the grounds of objection raised in the Notice of Preliminary Objection and the written submissions filed on behalf of the 1st Defendant. In the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E.A 696, the court held that; “ …a Preliminary Objection consists of a point of law which has been pleaded, or which arises 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 the 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.’’ 8. A preliminary objection therefore, must be based on pure points of law, must arise from the pleadings, may dispose of the suit 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. 9. The preliminary objection raised herein by the 1st Defendant relates to a plea of limitation and jurisdiction. These are pure points of law as they are based on statute, particularly, the provisions of the Limitation of Actions Act. The plea of limitation is apparent and can be deduced from the pleadings filed by the plaintifi. 10. A reading of the plaint dated 5th December 2025 shows that the Plaintifi pleaded in paragraph 6 thereof that it was on 26th May 2010 that the unlawful and fraudulent transfer of the suit land parcel number KISUMU/CHIGA/1635 in favour of the 1st defendant happened. The suit was filed on 5th December https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3210/eng@2026-05-21 2

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2025. This was clearly outside the limitation period in section 7 of the Limitation of Actions Act. Section 7 of the Limitation of Actions Act provides that “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 11. There are no assertions in the plaint that the fraud was discovered on some other later date, which would cover the Plaintifi under the provisions of section 26 of the Limitation of Actions Act. 12. I find that the suit was filed out of time. The suit is hereby struck out. Costs to the 1st Defendant. Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 21ST DAY OF MAY, 2026, VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION. E. ASATI, JUDGE. In the presence of: Atika: Court Assistant. Mshindi for the 1st Defendant/Applicant. N/A for the Plaintifi, the other Defendants, and the Interested Parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3210/eng@2026-05-21 3

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