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Court of AppealAllowedCivil Appeal No E015 of 2020· [2024] KECA 579 (KLR)

Warrakah (Suing as the Administrator and Legal Representative of the Estate of Gakweli Mohamed Warrakah - Deceased) v Mwatsami (Civil Appeal E015 of 2020) [2024] KECA 579 (KLR)

Court of Appeal
24 May 2024
AMA. K. MurgorKLDr. K. I. LaibutaGOG. V. Odunga
3,299 words in judgment
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AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal reinstated a landowner's trespass suit, ruling that continuing trespass claims are not time-barred and objections requiring evidence cannot strike out suits.

What this practically means

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Executive summary

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The appellant, administrator of the estate of Gakweli Mohamed Warrakah, sued the respondent claiming he was a trespasser on Plot No. Kwale/Shimba North/Kandutsi 'B'/1062 in Kwale County, seeking a declaration of trespass, a mandatory injunction to remove structures, and supervised eviction. The respondent denied trespass, asserting rightful possession through his father, the alleged original owner, and filed a counterclaim. Both parties raised preliminary objections on limitation under section 7 of the Limitation of Actions Act. By a ruling dated 15th July 2020, the Environment and Land Court (Yano, J) held that both the suit and the counterclaim were time barred, dating the cause of action to the 1994 registration, and struck out both. On appeal, the Court of Appeal held that the preliminary objection was not a pure point of law because the parties disputed when the cause of action arose, a matter requiring evidence, contrary to the Mukisa Biscuit principle. Further, the court found that the suit was founded on alleged continuing trespass, not recovery of land; since every continuance of a trespass is a fresh cause of action, section 7 of the Limitation of Actions Act did not bar the suit. The court set aside the ruling to the extent it struck out the appellant's suit, reinstated the plaint, directed rehearing before a judge of the Environment and Land Court other than Yano, J, and awarded costs to the appellant. The decision striking out the respondent's counterclaim remains undisturbed. This judgment binds subordinate courts and the Environment and Land Court on the definition of preliminary objections and the inapplicability of section 7 to continuing trespass claims.

Key legal issues

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01

Whether the respondent's preliminary objection was a pure point of law

Holding

It was not, because the date the cause of action arose was contested and could only be established by evidence.

Reasoning

The parties could not agree when the causes of action arose, as the trial judge himself acknowledged. Under the Mukisa Biscuit definition, a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct, and cannot be raised if any fact has to be ascertained. Determining when the cause of action arose required hearing evidence, so the objection was incompetent and ought to have been dismissed.

p. 4
02

Whether the appellant's suit was a claim for recovery of land barred by section 7 of the Limitation of Actions Act

Holding

It was not; the suit sounded in trespass, and a continuing trespass is not time barred.

Reasoning

The pleadings sought a declaration of trespass, a mandatory injunction to remove structures, and supervised eviction - not recovery of land. The tort of trespass enforces possessory rights, and every continuance of a trespass is a fresh trespass giving a new cause of action from day to day. The trial judge erred by anchoring limitation on the 1994 registration, treating the claim as one for recovery of land rather than as a continuing tort.

p. 5

Legal principles established

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  • A preliminary objection that requires ascertainment of disputed facts, such as when a cause of action arose, is not a pure point of law and must fail.
  • A claim based on continuing trespass is not barred by section 7 of the Limitation of Actions Act, since each continuance of the trespass gives rise to a fresh cause of action.

Court orders

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  1. 1.The ruling of the Environment and Land Court dated 15th July 2020 is set aside to the extent that it struck out the appellant's suit by upholding the respondent's Preliminary objection dated 20th March 2019
  2. 2.The appellant's Plaint dated 16th January 2018 is reinstated
  3. 3.The suit be heard and determined by a judge of the Environment and Land Court other than Yano, J
  4. 4.Costs to the appellant

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Trespass Actsection 3
  • Constitution of KenyaArticle 40
  • Court of Appeal Rulesrule 31(1)(a)

Cases cited (7)

  • Peters vs. Sunday Post Limited
    [1958] EA 424
  • Mukisa Biscuit Company vs Westend Distributors Limited
    [1969] EA 696
  • Attorney General & another vs Andrew Maina Githinji & Another
    [2016] eKLR
  • Letang vs. Cooper
    [1964] 2 All ER 929
  • Konskier vs Goodman Ltd
    [1928] 1 KB 421
  • Muthiora vs Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased)
    (Civil Appeal 43 of 2017) [2022] KECA 28 (KLR)
  • Challo vs City Chicken and Eggs Dealers Co-operative Society Limited & another
    (Civil Appeal 117 of 2018) [2023] KECA 244 (KLR)
On appeal from
Environment and Land Court
Jurisdiction invoked
First appeal under rule 31(1)(a) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Warrakah (Suing as the Administrator and Legal Representative of the Estate of Gakweli Mohamed Warrakah - Deceased) v Mwatsami (Civil Appeal E015 of 2020) [2024] KECA 579 (KLR)", Case Analysis (2024). Civil Appeal No E015 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/579/eng@2024-05-24

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