Erick Kipkemboi (Suing as the administrator of the estate of James Cheriro Deceased) v Brooke Bond (Kenya Limited) [2018] KEELC 3965 (KLR)

The court applied section 7 of the Civil Procedure Act, which requires that the matter have been directly and substantially in issue and heard and finally decided. Waithaka J had declined to determine limitation definitively because the objection was raised as a preliminary objection without affidavit evidence, so no final determination on the merits existed. By contrast, the capacity/locus standi issue was fully determined in the earlier ruling and could not be relitigated. The court relied on Enock Kirau Muhanji v Hamid Abdalla Mbaraka on res judicata.

Both parties relied on title documents; the plaintiff alleged fraud in entries number 7 and 8 on the certificate of title. The court held that veracity of documents could only be determined at a full hearing and declined to dismiss the fraud claim as scandalous on that account. However, the pleaded claim failed on limitation, and following D.T Dobie & Company (Kenya) Ltd v Muchina and Crescent Construction Co. Ltd v Delphis Bank Ltd, the discretion to strike out was exercised because the claim was incompetent and unsustainable.

The plaintiff argued that the suit was based on trust and that time only ran from knowledge of the trust in 2007. The court accepted that this is the correct legal position in principle, but found that no trust was pleaded in the Plaint or Reply to Defence, and the replying affidavit did not explain how a trust would be inferred. Since parties are bound by their pleadings, the trust exception could not save the claim, which was filed 33 years after the cause of action accrued.