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Court of AppealDismissedCivil Appeal No 109 of 2018· [2021] KECA 810 (KLR)

Kigwor Company Limited v Samedy Trading Company Limited

Court of Appeal of Kenya
19 March 2021
RNR. N. NambuyeWKW. KaranjaPKP. O. Kiage
3,976 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that you cannot use a preliminary objection to kill a land claim when the facts, like when the dispute started, are still disputed.

What this practically means

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Executive summary

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The appellant, Kigwor Company Limited, appealed against a ruling of the Environment and Land Court (K. Bor J) delivered on 14th December 2017 dismissing its preliminary objection that the respondent's suit was statute-barred under section 7 of the Limitation of Actions Act, having been filed 21 years after the appellant's title was issued in 1996. The respondent claimed title to Land Parcel L.R No. 4144 through an allotment to its predecessor, contending it took possession in 2012, subdivided the land in 2014, and only learnt of the appellant's competing claim in 2015 and 2017. The Court of Appeal framed the sole issue as when the cause of action arose and whether the preliminary objection rested on uncontested points of law. Applying the Mukisa Biscuits test as restated by the Supreme Court in IEBC v Jane Cheperenger and Hassan Ali Joho, the court held that a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Here at least three possible accrual dates emerged from the pleadings, and ownership, possession and the identity of the land were all heavily contested; the limitation question therefore required evidence at trial. The court also applied the principle that a preliminary objection is a shield, not a sword. The appeal was found to lack merit and was dismissed with costs to the respondent, affirming the ruling below.

Key legal issues

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01

Whether the appellant's preliminary objection on limitation was a sustainable pure point of law

Holding

It was not: the date when the cause of action accrued was heavily contested and required evidence, removing the matter from the ambit of a preliminary objection

Reasoning

At least three possible accrual dates emerged from the pleadings - 1996 (appellant's title), 2014 (first alleged invasion), and 2017 (the respondent's alleged discovery of trespass). Possession and identity of the suit land were likewise disputed. Because the threshold test requires that no fact be ascertained, the objection failed and the learned Judge did not misdirect herself.

p. 5
02

When does a cause of action arise in a claim for recovery of land

Holding

A cause of action is the fact or act entitling the plaintiff to complain or obtain a remedy; its accrual date in this case was a factual question for trial

Reasoning

Adopting the definitions in Read v Brown, Letang v Cooper and Drummond Jackson, the court held that the entitlement to complain depends on facts such as knowledge of trespass and possession, which were disputed here. Consequently limitation could not be determined without trial evidence.

p. 4

Legal principles established

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  • A preliminary objection may only be raised on a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where any fact has to be ascertained or where judicial discretion is sought
  • It is improper for a party to deploy a preliminary objection as a sword to win a case that ought to be resolved on the merits

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
Environment & Land Court at Nairobi
E.L.C. No. 295 of 2017
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kigwor Company Limited v Samedy Trading Company Limited", Case Analysis (2021). Civil Appeal No 109 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/810/eng@2021-03-19

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