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ELCDismissedNot stated in judgment· [2017] KEELC 616 (KLR)

John Muikamba Gitau v Trustees Caritas Mariana, Holy Family Children’s Home, Thika & another [2017] KEELC 616 (KLR)

Environment and Land Court
18 December 2017
1,644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika dismissed land defendants' attempt to strike out a suit, ruling it was filed within the 12-year limitation period.

What this practically means

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Executive summary

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The Plaintiff, John Muikamba Gitau, sued for a declaration that Thika Municipality Block 23/1108, purchased in 2002 from the late Daniel Wainaina Kanoga, belongs to him absolutely and for vacant possession. He pleaded that he had allowed the Defendants to occupy the land as licencees under an agreement of 29th August 2004, and that despite a notice to vacate dated 20th April 2005 they remained and erected permanent developments. Before filing a defence, the Defendants raised a Notice of Preliminary Objection on four grounds: that the suit was statute and time barred under Sections 7 and 17 of the Limitation of Actions Act without requisite leave; that no action lies against a beneficial owner under Section 16; that there was misjoinder; and that the Plaintiff's documents required forensic examination. The Plaintiff submitted that the objection failed the Mukisa Biscuits threshold. Justice L. Gacheru applied Mukisa Biscuits, Quick Enterprises and United Insurance Co. Ltd v Scholastica A. Odera to hold that only the first ground was a pure point of law; grounds 2, 3 and 4 required ascertainment of facts and fell outside the threshold. On limitation, the court found the cause of action accrued on 20th April 2005 when the notice to vacate issued, so the suit, filed within 11 years, was not time barred and the court had jurisdiction. The preliminary objection was dismissed entirely with costs to the Plaintiff.

Key legal issues

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01

Whether grounds 2, 3 and 4 of the preliminary objection qualify as pure points of law

Holding

They do not, as they require ascertainment of facts and thus fall outside the Mukisa Biscuits threshold

Reasoning

Applying Mukisa Biscuits and Quick Enterprises, the court held that only a pure point of law capable of disposing of the suit without calling evidence qualifies as a preliminary objection. Grounds 2, 3 and 4 (beneficial ownership, misjoinder, and forensic scrutiny of documents) all require factual inquiry and were therefore excluded from determination.

p. 2
02

Whether the suit for recovery of land filed in 2016 was barred by Sections 7 and 17 of the Limitation of Actions Act

Holding

No; the cause of action accrued on 20th April 2005 when notice to vacate was issued, and suit filed within 11 years, so limitation does not apply

Reasoning

Section 7 bars actions to recover land after 12 years from accrual of the right of action. Although the purchase was in 2002, the Plaintiff pleaded that the Defendants were licencees under an agreement of 29th August 2004 and notice to vacate was issued on 20th April 2005; the right of action accrued on that notice, and the suit filed on 14th June 2015/2016 fell within 11 years. Jurisdiction therefore remained intact.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law and cannot be raised where facts have to be ascertained
  • A court without jurisdiction must down tools

Court orders

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  1. 1.The Notice of Preliminary Objection dated 30th June 2016 is found not merited and is dismissed entirely
  2. 2.Costs of the preliminary objection awarded to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 17
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 16
  • Civil Procedure Rules, 2010Order 2 Rule 15 (a-d)

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • United Insurance Co. Ltd Vs Scholastica A. Odera
    Kisumu HCCA No.6 of 2005
  • Owners of the Motor Vessel 'Lillian S' Vs Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Ndimu Vs Ndimu & Another
    (2007) EA 269
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land (Thika Municipality Block 23/1108); no specific provision cited

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, "John Muikamba Gitau v Trustees Caritas Mariana, Holy Family Children’s Home, Thika & another [2017] KEELC 616 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/616/eng@2017-12-18

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