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Court of AppealPartially AllowedCivil Appeal No. 318 of 2014· [2015] KECA 556 (KLR)

Richard Toroitich v Mike K Lelmet & 4 others [2015] KECA 556 (KLR)

Court of Appeal
24 June 2015
DMD. K. MusingaGKGatembu KairuAMA. K. Murgor
2,643 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a claim can't be thrown out on time-limit grounds alone if key facts are still disputed.

What this practically means

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Executive summary

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This was an appeal against a ruling of the High Court at Kitale (E. Obaga, J) of 28 May 2014 upholding a preliminary objection that the appellant's suit, seeking a declaration of entitlement to five acres of L.R. No. 6614/4 Cherangany based on sale agreements of 2003 and 2005 with the late William Cheruiyot Lelmet, was time-barred under the Limitation of Actions Act. The High Court struck out both the suit and the appellant's application for an interlocutory injunction, but left the respondents' counterclaim to proceed. The appellant argued the preliminary objection was not a pure point of law because the date his cause of action arose depended on contested facts; the respondents maintained limitation was a jurisdictional matter determinable on the pleadings. The Court of Appeal applied the Mukisa Biscuit test and held that where the pleadings, including the respondents' linked counterclaim alleging trespass, left open the question of when the cause of action accrued, the objection could not be disposed of in limine. It confined itself to the limitation ground, as the High Court had done, and did not address the Land Control Act or other grounds. The Court allowed the appeal, set aside the High Court order, reinstated the suit and notice of motion for hearing on the merits, awarded the appellant the costs of the preliminary objection in the High Court, and directed that the costs of the appeal abide the outcome of the High Court proceedings. The respondents had withdrawn their application to strike out the appeal for want of time, and that issue was not entertained.

Key legal issues

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01

Whether a plea of limitation can found a sustainable preliminary objection where the date the cause of action arose is contested

Holding

No. Where the pleadings and counterclaim leave open the question of when the cause of action accrued, limitation is not a pure point of law and cannot dispose of the suit in limine.

Reasoning

The Court adopted the Mukisa Biscuit test that a preliminary objection must be a pure point of law decided on the assumption that the facts pleaded by the other side are correct. The appellant pleaded sale agreements but also pleaded that the respondents' unlawful 2014 actions triggered the suit, and the respondents' counterclaim alleging trespass was inextricably linked to the claim. Because when the cause of action arose required further interrogation on contested facts, the objection could not be sustained.

p. 5
02

Whether the High Court erred in striking out the suit and the interlocutory injunction application

Holding

Yes. The judge erred in upholding the preliminary objection and striking out the suit and notice of motion; both were reinstated for hearing on the merits.

Reasoning

Having found that limitation was not properly determinable in limine on the contested facts, the Court held the striking out could not stand. The Court also declined to address the other grounds of the preliminary objection, including the Land Control Act point, because the High Court had confined itself to the limitation ground.

p. 5

Legal principles established

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  • A preliminary objection on limitation cannot be sustained where the date the cause of action arose depends on contested facts requiring further interrogation; such an objection is not a pure point of law.
  • The Mukisa Biscuit definition of a preliminary objection binds lower courts: it must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct.

Court orders

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  1. 1.The order of the High Court given on 28th May 2014 is set aside
  2. 2.The appellant's suit and notice of motion filed in the High Court on 1st April 2014 are reinstated for hearing and disposal on the merits by the High Court
  3. 3.The appellant shall have the costs relating to the hearing of the preliminary objection in the High Court
  4. 4.The costs of this appeal shall abide by the outcome of the proceedings in the High Court

Authorities

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Legislation

  • Limitation of Actions Actsection 4
  • Land Control Act (Cap 30 Laws of Kenya)section 7
  • Civil Procedure RulesOrder 40, rules 1 to 4
  • Civil Procedure Rules2010 Rules
  • The Environment and Land Act No. 19 of 2011sections 3 and 19
  • Constitution of Kenya, 2010Article 159

Cases cited (5)

  • Mukisa Biscuit Co. Ltd vs. West End Distributors Ltd
    [1969] E A 696
  • D. T. Dobie & Company Ltd vs. Muchina & Anor
    [1982] KLR 1
  • Peter Ngugi Kabiri vs. Esther Wangari Githinji and another
    [2015] eKLR
  • Kutima Investments Limited vs. Muthoni Kihara and Anor
    [2015] eKLR
  • Republic – Versus – Cherengani LDT & Another Ex parte Mike Kiptoo Lelmet Interested Party Richard Toroitich
On appeal from
High Court of Kenya at Kitale
H.C. E & L Case No. 17 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Richard Toroitich v Mike K Lelmet & 4 others [2015] KECA 556 (KLR)", Case Analysis (2015). Civil Appeal No. 318 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/556/eng@2015-06-24

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