Muriakiara v Ngugi (Environment and Land Case E161 of 2024) [2026] KEELC 427 (KLR) (2 February 2026) (Ruling)
Neutral citation:
[2026] KEELC 427 (KLR)
Republic of Kenya
Environment and Land Case E161 of 2024
JA Mogeni, J
February 2, 2026
Between
Peter Ngugi Muriakiara
Plaintiff
and
Irene Wanjiku Ngugi
Defendant
Ruling
1.The Defendants has raised a Preliminary Objection dated 9/06/2025 on the grounds that;
2.That the entire suit as comprised in the Plaint dated 27/09/2024 be struck out with costs on the grounds that the Plaintiff’s claims in respect of breach of contract and recovery of the suit property as set out in the Plaint are statute and time barred as they offend the provisions of Section 4(1) (a) & 7 of the Limitation of Actions Act, Cap 22.
3.That therefore the claim should be dismissed with costs.
4.The Plaintiff filed a Replying Affidavit sworn on 19/07/2025 and deposed that that the Preliminary Objection is incompetent and fatally defective. It was his contention that although the timeline for actions to recover land is prescribed as 12 years, the same does not begin running from the date the contract was entered into but rather from the date on which the right of action accrued to him. That this simply means that the cause of action arose the date the Defendant breached the contract and a wrong was done unto the Plaintiff wherefrom he obtained a right of action.
5.According to the Plaintiff, the cause of action in this suit did not arise in the year 2003. That it arose sometime around 12th September 2024 when the Defendant decided to breach the verbal agreement entered in the year 2003 by beginning the process of selling the suit property solely because the Defendant was dissatisfied by an unrelated decision he had made as the head of the family. Thus, it is his contention that it is only then, that the cause of action arose and the right of action accrued to the Plaintiff. He states that this position is duly captured at paragraphs 9 and 13 of the Plaintiff’s Plaint dated 27/09/2024.
6.It is the position of the Plaintiff/Respondent that this suit has been brought within the legally prescribed timeline of 12 years and the Preliminary Objection is incorrect. Further he deposes that the Defendant has failed to prove or demonstrate any of the conditions required in law to warrant striking out of the Plaintiff’s suit.
7.It is the Plaintiff’s averment that he stands to suffer grave injustice and prejudice if this Court allows the Preliminary Objection as his constitutional rights to be heard and to access justice shall be gravely violated. He therefore prays that the Preliminary Objection be dismissed with costs because it lacks merit.
8.The parties canvassed the application by written submissions. The Applicant/Objector filed their written submissions dated 31/07/2025 while the Plaintiff/Respondent filed their submissions dated 26/08/2025. I have considered both submissions, pleadings filed and responses.
Analysis and Determination
9.This Court has considered the Preliminary Objection and submissions therein. According to the Black Law Dictionary a Preliminary Objection is defined as being;
10.The above legal preposition has been made in the case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) E.A. 696 where the Court held that;
11.In the case of Attorney General & Another vs Andrew Mwaura Githinji & Another (2016) eKLR the Court outlined the scope and nature of Preliminary Objection as;i.A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.ii.A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; andiii.The improper raise of points by way of Preliminary Objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
12.It is trite law that a Preliminary Objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter.
13.The Defendant in his submissions identified three issues for determination of the Preliminary Objection (PO) being whether the PO is properly and validly raised in order to merit consideration, secondly whether the Plaintiff’s claims relating to breach of contract and recovery of the suit property as set out in the plaint are statute and time-barred and lastly whether the Court possess the jurisdiction to adjudicate over the suit herein?
14.I do find that the filed Preliminary Objection by the Defendant herein was properly brought before the Court since it has raised the issue of jurisdiction of the Court which is a pure point of law. The Defendant has referred to a number of decided cases which I have considered to buttress the three issues she has identified in her submissions.
15.The Defendant argues is that this Court does not have jurisdiction and the suit is time barred as provided under Section 4 of the Limitation of Actions Act. That the cause of action accrued in 2003 and under the contract law and the window period closed in 2009. Further that the claim for recovery of land had a time span of 12 years and that the window period closed in 2015.
16.In the case of Owners of the Motor Vessel M.V Lillian S. vs Caltex Oil (K) Limited (1989) KLR 1 the Court held that without jurisdiction it has to down its tools. The jurisdiction of the Environment and Land Court (ELC) flows from Article 162 (2)(b) of the Constitution of Kenya 2010. Section 13 (2) of the ELC Act vests this Court with wide powers over any dispute relating to land it provides that;
17.The jurisdiction of this Court to hear and determine this suit flows from the Constitution and the law. The jurisdiction of Court is not conferred upon it by parties nor can the Court confer upon itself jurisdiction. The Supreme Court in Samuel Kamau Macharia and Another vs Kenya Commercial Bank Limited & 2 Others (2012) eKLR held that;
18.I have perused the Court record and find that by a Plaint dated 27/09/2024, the Plaintiff avers that he entered into a contract with the Defendant in 2003 but that although the timeline for actions to recover land is prescribed as 12 years, the same does not begin running from the date the contract was entered into but rather from the date on which the right of action accrued to him. That this simply means that the cause of action arose the date the Defendant breached the contract and a wrong was done unto the Plaintiff wherefrom he obtained a right of action.
19.On his part the Defendant submitted that this is a matter relating to contracts and that it ought to have been brought to Court within six (6) years and if the Plaintiff wanted to recover the land, he should have moved the Court within twelve (12) years. I find that this matter relates to a contract touching on the purchase of the suit land and hence this Court has jurisdiction as per Section 13 of the ELC Act referred to above.
20.The Applicant’s contention in her submissions is that since the suit is founded on contract and in accordance with Section 4(1) of the Limitation of Actions Act, it ought to have been instituted within a period of six (6) years from the date when the cause of action accrued. The said Section provides as follows:
21.The purpose of the Law of Limitation was stated in the case of Mehta vs Shah (1965) E.A 321, as follows;
22.In the case of Gathoni vs Kenya Co-operative Creameries Ltd (1982) KLR 104, the Court of Appeal held as follows;
23.A suit barred by limitation is a claim barred by law, hence by operation of law, the Court cannot grant the relief sought. In the case of Iga vs Makerere University (1972) EA, the Court had this to say on the Law of Limitation;
24.The Plaintiff on his part identified two issues for determination in his submissions being whether the Defendant’s Preliminary Objection dated 9/06/2025 is proper, valid and or merited and whether the Plaintiff’s suit is statute or time-barred.
25.Section 4 of the Limitation of Actions Act provides that an action based on contract may not be brought after the lapse of six (6) years from the date the right of action accrued to the Plaintiff/Respondent.
26.In the case of Narne Rama vs Murthy vs Ravula Soma Sundarama and Others, Supreme Court of India, 2005 stated as follows:
27.Given the foregoing, the issue of limitation of actions is a mixed question of law and fact, requiring evidentiary proof, and cannot be properly raised as a Preliminary Objection. Therefore, whereas the question of whether the suit is time-barred is a factual matter, the determination of whether the cause of action accrued outside the prescribed statutory period requires an inquiry into the facts, which can only be determined upon evidence being adduced.
28.In a Tanzanian case of Hammers Incorporation Co. Ltd Versus The Board of Trustees of the Cashewnut Industry Development Trust Fund, the Court of Appeal, (Rutakangwa, N. P. Kimaro and S. S. Kadage JJA), sitting in Dar es Salaam in their decision given on 17/9/2015 regretted that the practice of raising Preliminary Objection that was frowned upon by the Court of Appeal in Kampala in the Mukisa Biscuit Case (Supra) still persists. They stated as follows: -
29.Therefore, a Preliminary Objection must be based on current law and be factual in its Constitution. It cannot be based on disputed facts or facts requiring further inquiry. In determining a Preliminary Objection, therefore, only three documents are required in addition to the Constitution – the impugned law, the Plaint, and the Preliminary Objection. If you have to refer to the Defence, then the Preliminary Objection is untenable.
30.As already stated above, a Preliminary Objection must raise pure points of law. This was held in Mukisa Biscuit Manufacturing Co. Limited vs West End Distributors Ltd (supra), and must consist of a pure point of law, and where facts are disputed, the matter cannot be determined at the preliminary stage.
31.In my considered view, the Defendant/Applicant has improperly invoked the Preliminary Objection procedure. The issue of limitation should be raised by way of a formal application supported by evidence and not as a Preliminary Objection, since the Preliminary Objection offends the principles of fair hearing and access to justice.
32.Allowing the Defendant/Applicant Preliminary Objection will improperly terminate the suit without allowing the Plaintiff/Respondent to present its case, contrary to Article 50 and Article 159 of the Constitution of Kenya, 2010. This despite the fact that the suit discloses triable issues.
33.Even if I was to assume that the limitation is a valid concern, the Plaintiff/Respondent is entitled to be heard on any exceptional circumstances that may justify extension of time, which requires factual proof.
34.Thus, while some older cases suggested limitation as a pure point of law, recent jurisprudence emphasizes that if any evidence or factual dispute is involved, it must be dealt with through a proper application, not a Preliminary Objection, to uphold fair play and efficient justice.
35.In my considered view therefore, this suit requires a trial to ascertain as to when the Plaintiff discovered the contract or the fact that he would not get any ownership to the suit property. The Plaintiff avers in his Plaint that the Defendant made arrangements to sell the suit property which she had contracted to transfer back to him. So then when did the Defendant discover the action denying him ownership of the suit property? I rely on the authority of Justus Tureti Obara vs Peter Koipetai Nengisoi (2014) eKLR where Okongo J. Stated that;
36.I therefore find that this suit is not time barred and that the Preliminary Objection is not merited and I dismiss it with costs.
37.It is so ordered.
DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 2ND DAY OF FEBRUARY, 2026...........................MOGENI JJUDGEIn the presence of:-……………………………………………………………………………………………………Mr. Melita – Court Assistant