1.This ruling is in respect of a Notice of Preliminary Objection dated 30th November 2021 by the 2nd Defendant on the ground that the suit is time barred by dint of Section 7 of the Limitation of Actions Act.
2Counsel agreed to canvas the preliminary objection vide written submissions which were duly filed.
2nd Defendant’s Submissions
3Counsel gave a brief background to the case and stated that the plaintiff BENETI LUWALI MWAWANI (now deceased) filed this suit on 13th September 2018 claiming the suit land known as PLOT NO. CHEMBE/KIBABAMSHE/294.
4That the 2nd Defendant contends that he purchased PLOT NO. CHEMBE KIBABAMSHE/294 measuring 10 acres for the sum of Kshs 4,000,000 from the 1st Defendant, THABIT SWALEH (deceased) on 14th June 2007 and that at the time of the purchase the suit land was legally registered in the name of the 1st Defendant with no encumbrances.
5Further that the 2nd Defendant through a letter dated 26th June 1997, by the plaintiff to his advocate makes it evident that the deceased Plaintiff was aware that the land parcel Chembe/Kibabamshe/294 (suit property) had been transferred to the 1st Defendant. The deceased filed the present suit on 13th September 2018 long after the expiry of the requisite 12 years since the cause of action arose.
6Counsel relied on the cases of Sohanlaldurgadass Rajput & another v Divisional Integrated Development Programmes Co Limited  eKLR and Gregory Mutiani v Standard Bank Limited  eKLR and submitted that time started running when the Plaintiff became aware of the fact that would give rise to legal action.
7It was counsel’s submission that the purpose of the Law of Limitation of Actions is to prevent a plaintiff from prosecuting stale claims as was held in the case of Mehta V Shah (1965) E.A. 321.
8Similarly, counsel cited the case of Gathoni v Kenya Co-operative Creameries Ltd (1982) KLR 104 where the court held that the Law of Limitation of Actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them and urged the court to allow the preliminary objection and dismiss the plaintiff’s suit.
9The Plaintiff’s counsel opposed the Preliminary Objection and stated that the original Plaintiff, the late Beneti Luwali Mwawani filed this suit on 13th September, 2018 vide his plaint dated 12th September, 2018, seeking both declaratory reliefs of ownership and revocation of a title deed of the suit premises, being Plot No. Chembe/Kibabamshe/294 which was issued to the Defendants through fraud.
10Counsel submitted that the preliminary objection does not meet the requirements of what amounts to pure points of law. Further that the plaintiff is not aware of the purported letter written by the deceased and that the Plaintiffs only became aware of the cause of action herein in June 2017, as stated in paragraph 4 of the Plaint.
11It was counsel’s further submission that a preliminary objection, can only succeed if it is based on a pure point of law where no fact is disputed and relied on the cases of John Mundia and 9 others v Cecilia Muthoni Njoroge & another  eKLR; Kenya Breweries Limited & another v Keroche Breweries Limited  eKLR; Charles Onchari Ogoti v Safaricom Limited & another  eKLR; Zipporah Njoki Kangara v Rock and Pure Limited & 3 others  eKLR; and Maulid Mohamed Ogona v Jikomi Said Maro eKLR.
12Counsel submitted that the defendant has based the preliminary objection on a letter dated 26th June 1997 which is disputed by the plaintiff therefore calls for hearing of the suit to determine the facts that are disputed. Further that a preliminary should not be used as a sword but as a shield and savior of judicial time hence the present Objection as filed does not meet the threshold and urged the court to dismiss the same with costs.
Analysis And Determination
13The issue for determination is whether the preliminary objection as filed meets the threshold for objections and if so whether the suit is time barred.
14It is trite law that a preliminary objection should be purely on a point of law as was held in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 where the court explained as follows:Further Sir Charles Newbold, JA stated that: -
15Further it is also trite law that a preliminary objection must not deal with disputed facts and factual information which must be tested by the normal rules of evidence as was held in the case of Oraro v Mbaja (2005) eKLR.
16The basis of this preliminary objection is a letter dated 26th June 1997 which is disputed by the plaintiff. This is based on factual evidence which has to be proved vide rules of evidence either on its existence or authenticity. This alone throws the preliminary objection off balance as it does not meet the principle that a preliminary objection must be purely on a point of law. The other point is that when a Preliminary Objection is raised, it is assumed that all the facts pleaded by the other side are correct, therefore it cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion.
17The plaintiff has claimed fraud which he discovered in 2017 and section 26(a) of the Limitation of Actions Act provides that where an action is based on the fraud of the defendant or his agent, the period of limitation does not begin to run until the Plaintiff has discovered the fraud or could with reasonable diligence have discovered it. The time when the plaintiff alleged to have discovered the fraud is a matter of fact which has to be ascertained by evidence during trial.
20Further in the case of Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi  eKLR, while holding that the defence of limitation of time was a matter for determination at the trial and not to be summarily dealt with as a preliminary objection cited with approval the cases of Oruta &Another vs. Nyamato  KLR 590 and Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997 as follows:
21I have considered the submissions by counsel and the relevant judicial authorities and find that the preliminary objection lacks merit and is therefore dismissed with costs to the plaintiff.