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ELCStruck OutPetition dated 21st February 2018 (Nyahururu ELC)· [2018] KEELC 1423 (KLR)

Arthur Juguna Kamau v Eunice Wangari Karanja & County Land Registrar [2018] KEELC 1423 (KLR)

Environment and Land Court
11 October 2018
3,252 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 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 Petitioners filed a Petition on 22nd February 2018 seeking, among other things, declarations that the proceedings and orders in Nyahururu Succession Cause No. 83 of 2006 (Estate of Hezekiah Karanja Njagi), the title deed issued to the 1st Respondent on 31st May 2007, and the subdivision of Nyandarua/Ol Kalou/1088 were null and void, together with cancellation of the title and its reissuance to the Petitioner. The 1st Respondent raised a Preliminary Objection contending that the court lacked jurisdiction because the claim, founded on an action to recover land, was barred by Section 7 of the Limitation of Actions Act; that the Petition was incompetent, defective and an abuse of process; that no constitutional violation was pleaded to invoke Article 22; and that the Petitioner lacked locus standi, not having been party to the succession cause. Framing two issues on the sustainability and merit of the objection, the court applied Mukisa Biscuits on the nature of preliminary objections and Anarita Karimi Njeru on constitutional pleading. It found the Petition fatally defective, resting on generalized complaints without identifying the infringed rights or provisions. It further held that the cause of action arose in 1986, some thirty-two years before filing, with no extension of time exhibited, so the claim was statute-barred and, following Bosire Ongero and the Joey case, limitation ousted jurisdiction. The Preliminary Objection succeeded in its entirety and the Petition was struck out with costs to the 1st Respondent.

Key legal issues

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01

Whether the Preliminary Objection was a proper point of law

Holding

It qualified under the Mukisa Biscuits test as it raised jurisdiction and limitation, pure points of law.

Reasoning

The court adopted Mukisa Biscuits Manufacturing Ltd v West End Distributors, including Sir Charles Newbold's formulation that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised. Limitation and jurisdiction satisfied this test.

p. 3
02

Whether the Petition met the Anarita Karimi Njeru threshold

Holding

It did not; it was founded on generalized complaints without focus on any infringed constitutional right and was fatally defective.

Reasoning

The court held that a petitioner must plead with reasonable precision the rights violated, the manner of violation and the constitutional provisions contravened, so that alleged violators know which Articles they are said to have breached. The Petition before the court contained generalized complaints without focus, failing the threshold test of constitutional proof.

p. 4
03

Whether Section 7 of the Limitation of Actions Act barred the claim

Holding

Yes; the cause of action arose in 1986 and the Petition was filed in 2018, about thirty-two years later, without extension of time, hence statute-barred and outside the court's jurisdiction.

Reasoning

Section 7 prohibits actions to recover land after twelve years from accrual of the right. The Petitioner did not deny that the cause of action arose in 1986, and no leave for extension of time was exhibited. Following Bosire Ongero v Royal Media Services, limitation goes to jurisdiction, so the court was obliged to down tools.

p. 4

Legal principles established

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  • Limitation goes to jurisdiction; where a claim is statute-barred the court has no jurisdiction to entertain it.
  • A petitioner alleging constitutional violation must set out with reasonable precision the provisions infringed and the manner of infringement.
  • Where a court lacks jurisdiction it must down tools and take no further step.

Court orders

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  1. 1.The Preliminary Objection succeeds in its entirety
  2. 2.The Petitioner's Petition is struck out with costs to the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23(3)(a)-(b)
  • Constitution of Kenya, 2010Article 258
  • Limitation of Actions Act (Cap 22)Section 7
  • Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 4(1) and 10(2)
  • Civil Procedure ActSections 1A and 1B

Cases cited (8)

  • Mukisa Biscuits Manufacturing Ltd vs West End Distributors
    (1969) EA 696
  • Anarita Karimi Njeru vs Republic
    [1979] eKLR
  • Owners of the Motor vehicle vessel Lilian S vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
  • Owners and Masters of The Motor Vessel "Joey" vs Owners and Masters of The Motor Tugs "Barbara" and "Steve B"
    [2008] 1 EA 367
  • Lekinyot Ole Lanke vs Attorney General and 2 others
    ELC Petition No. 35 of 2014 (Nkakuru)
  • Boniface David Chege and 33 others vs Attorney General and 4 others
    ELC Petition No. 9 of 2012 (Nyahururu)
Jurisdiction invoked
Article 22 and Article 258 of the Constitution (constitutional petition invoking enforcement of rights/fundamental freedoms)

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, "Arthur Juguna Kamau v Eunice Wangari Karanja & County Land Registrar [2018] KEELC 1423 (KLR)", Case Analysis (2018). Petition dated 21st February 2018 (Nyahururu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1423/eng@2018-10-11

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