Kutima Investments Limited v Muthoni Kihara & 1 other
The bottom line
#Kenya's Court of Appeal restored a landowner's mining dispute suit, ruling that limitation defences must be specifically pleaded before a case can be struck out.
What this practically means
#Executive summary
#Key legal issues
#Whether a limitation defence unpleaded in the statement of defence could ground striking out of the plaint
No - Order VI Rule 4 of the Civil Procedure Rules mandatorily requires specific pleading of any statute of limitation, and an unpleaded limitation plea cannot sustain striking out.
The Court relied on the express wording of Order VI Rule 4, which requires a party to plead specifically any statute of limitation, and on its prior decision in Achola v Hongo. Since the 1st respondent never pleaded limitation, the learned judge erred in entertaining the plea and striking out the suit on that unpleaded basis.
Whether striking out was a proper exercise of discretion given the timing and state of the suit
No - the suit was ready for hearing with issues crystallized, and technical objections raised on the eve of hearing should not defeat substantive justice.
The suit had been filed in 1999, interlocutory matters disposed of, and a hearing date allocated for March 2005. Applications to strike out filed in January 2005, weeks before hearing, were treated as technically motivated. Courts must favour determination of real questions in dispute, and the overriding objective of the Civil Procedure Act required the judge to decline the striking-out applications.
Whether the suit disclosed a reasonable cause of action
The suit raised weighty and substantial issues - principally whether the Commissioner could grant a mining licence over private land without the owner's consent - unfit for striking out.
Under Section 7(1)(m) of the Mining Act, private lands are excluded from mining and prospecting except with the owner's consent, a position conceded by the 2nd respondent's counsel. Prior Court of Appeal decisions in the Kasigau litigation and Salmond on Torts confirmed that a bare licence is revocable and that continued entry after revocation renders the licensee a trespasser. These issues required trial.
Whether the objections concerning relief against the 2nd respondent (declaratory vs injunctive relief, anticipatory suit) warranted striking out
No - those objections are amenable to determination at trial after evidence is tendered.
The Court held that whether the suit against the 2nd respondent sought declaratory or injunctive relief, and whether it was anticipatory, were matters requiring factual or legal findings from the pleadings after a full hearing. They could not be resolved summarily on a striking-out application.
Legal principles established
#- A statute of limitation must be specifically pleaded in a defence; a party who fails to do so may not rely on it, including in a preliminary objection or application to strike out.
- Striking out a suit is a drastic remedy reserved for the clearest cases where the pleading is incapable of cure by amendment; courts should favour hearing cases on their merits.
- A belated application to strike out a suit made on the eve of a scheduled hearing, where the suit is ready for hearing, should generally be declined in favour of raising objections at trial.
Court orders
#- 1.The ruling and order dated 26th April 2005 set aside and substituted with an order dismissing the respondents' applications dated 12th January 2005 and 27th January 2005 with costs
- 2.The suit at the High Court is restored to proceed to full hearing in the normal manner expeditiously, given its age
- 3.The appellant shall have the costs of this appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 990 of 1999
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules against a ruling and decree of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mua Park Investments Limited v Kenya National Assuarance Companylimited (in Liquidation)[2016] KECA 639 (KLR)22 Apr 2016distinguished
Cite this brief
#Cite this brief
Caselaw, "Kutima Investments Limited v Muthoni Kihara & 1 other", Case Analysis (2015). Civil Appeal No. 117 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/792/eng@2015-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.