Laban Kimondo v Attorney General
The bottom line
#Kenya's Court of Appeal confirmed that a time-barred claim against the wrong party fails, even when both sides agree to drop the objection.
What this practically means
#Executive summary
#Key legal issues
#Whether a court may determine a withdrawn/abandoned preliminary objection raising a jurisdictional issue
Yes. Withdrawal of a preliminary objection by consent does not strip the court of jurisdiction; a jurisdictional issue may be raised and determined suo motu.
Relying on Anaclet Kalia Musau, Nasra Ibrahim Ibren and Iga v Makerere University, the court held that limitation is jurisdictional; if a suit is statute-barred the court has no jurisdiction to entertain it. Parties cannot confer jurisdiction by consent, and the withdrawn objection remained live before the court. The issues were issues of law requiring no evidence and no party was prejudiced.
Whether the suit was statute-barred
Yes. The claim ought to have been filed within 6 years of the cause of action; no discretion to extend time applied.
Section 4(1) of the Limitation of Actions Act was inapplicable, so the court had no discretion to extend time after expiry of the 6-year period. The court endorsed Divecon Ltd v Samani as good law and Rawal v Rawal on the object of limitation enactments, and found no basis to interfere with the trial court's findings.
Whether the Attorney General was the proper respondent (non-joinder/misjoinder)
No. Yuken, a statutory corporation with capacity to sue and be sued, was the correct respondent; upon receivership the official receiver was the proper party.
Yuken was a body corporate with perpetual succession capable of suing and being sued. Even if the appellant included the Attorney General, the corporation ought to have been the first and primary respondent. The appellant did not deny Yuken was under receivership when he filed suit, so the official receiver, not the Attorney General, should have been sued.
Legal principles established
#- Parties cannot confer jurisdiction on a court where none exists, even by consent, and a court may raise and determine a jurisdictional issue suo motu notwithstanding its abandonment by the parties.
- Statutory limitation is a jurisdictional question; once a suit is time-barred the court has no jurisdiction to entertain it, and parties cannot wish limitation away by consent, withdrawal or otherwise.
- A suit founded on a cause of action accruing against a statutory corporation must be brought against that corporation (or its receiver/liquidator upon receivership or liquidation), not against the Attorney General.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear its own costs of the appeal
- On appeal from
- Employment & Labour Relations Court at Nairobi
- ELRC Cause No. 941 of 2014
- Jurisdiction invoked
- Second appellate jurisdiction under the Court of Appeal's statutory appellate powers; submissions considered pursuant to Rule 29(1)(a) of the Court of Appeal Rules
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.
- Republic - Ex parte James Njoroge Njuguna[2018] KEHC 9583 (KLR)22 Oct 2018
Cite this brief
#Cite this brief
Caselaw, "Laban Kimondo v Attorney General", Case Analysis (2022). Civil Appeal 168 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1008/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.