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ELCStruck OutRuling on Notice of Motion dated 4th February 2016 in suit filed 9th February 2016· [2016] KEELC 119 (KLR)

Hafiza Joginder Dhanjal & another v Said Ahmed Suleiman & another [2016] KEELC 119 (KLR)

Environment and Land Court
16 November 2016
AOA. Omollo
1,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiffs sued by plaint dated 4th February 2016, seeking an injunction restraining the defendants from charging, selling or dealing with sub-plots 18 and 47 comprised in LR No. 11723/1/MN, specific performance of sale agreements dated 24th October 1997, and rectification or subdivision of the title. Together with the plaint they filed a notice of motion under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules seeking an interim injunction and preservation of status quo. The 1st defendant did not enter appearance. The 2nd defendant opposed the application by replying affidavit and raised a preliminary objection that the suit was time barred under section 4(1) of the Limitation of Actions Act, relying on two authorities. The plaintiffs argued that they only learnt of the registration of a third party in November 2010, that the contracts were partially performed through continuous occupation, and that the objection failed the Mukisa Biscuit threshold as it involved factual issues. The court held that the claim was founded on the 1997 contract and that the injunction and rectification prayers depended on the specific performance prayer. The pleadings were self-explanatory, requiring no evidence, so the objection was a pure point of law. The suit, filed in 2016 without leave, was out of time and fatally defective, a defect not curable by amendment. The preliminary objection was allowed; the application and the suit were struck out with costs to the 2nd defendant.

Key legal issues

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01

Whether the preliminary objection raising limitation was a pure point of law under the Mukisa Biscuit test

Holding

The objection met the Mukisa Biscuit threshold because the plaint's own pleadings showed the claim was founded on a 1997 contract and filed out of time without needing evidence.

Reasoning

The court examined the plaint and found the claim rested on the sale agreement of 24th October 1997. Prayers for injunction and rectification were dependent on the specific performance prayer. Since the pleadings were self-explanatory, no evidence was needed, satisfying the pure-point-of-law threshold.

p. 3
02

Whether the suit was barred by limitation

Holding

Yes - the suit seeking specific performance of a 1997 agreement was filed outside the six-year period in section 4(1) of Cap 22 with no leave, and was struck out.

Reasoning

Section 4(1)(a) and (e) bar suits founded on contract or seeking equitable relief after six years. The agreement was executed in October 1997, payments completed in January 2000, and the suit was filed in February 2016. No leave to bring the suit out of time was sought, so the suit and the application founded on it were struck out.

p. 3

Legal principles established

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  • Suits founded on contract or seeking equitable relief must be filed within six years under section 4(1) of the Limitation of Actions Act, and a suit filed out of time without leave is fatally defective and cannot be cured by amendment.

Court orders

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  1. 1.Preliminary objection allowed
  2. 2.Plaintiffs' application and the suit struck out for being in breach of section 4(1) of Cap 22
  3. 3.Costs of the application and suit awarded to the 2nd defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A & 63(e)
  • Civil Procedure RulesOrder 40
  • Limitation of Actions ActSection 4(1)(a) and (e)
  • Evidence ActSection 34

Cases cited (3)

  • Abraham Gina Adams (suing as the administrator of the Estate of the late Geoffrey Adams Ogwa) vs James Ouma Natolio
    (2015) eKLR
  • Harrison Kamau Gikambu vs Daniel Kiragu Gitau
    (2016) eKLR
  • Mukisa Biscuit Manufacturing Ltd vs West End Distributors Ltd
    (1969) E.A 696
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; application under Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules

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, "Hafiza Joginder Dhanjal & another v Said Ahmed Suleiman & another [2016] KEELC 119 (KLR)", Case Analysis (2016). Ruling on Notice of Motion dated 4th February 2016 in suit filed 9th February 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/119/eng@2016-11-16

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