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ELCDismissedELC No. 232 of 2014 (suit property CR No 122/MN/II/390)· [2018] KEELC 4511 (KLR)

Two Thirds Investiment Limited & 10 others v Katana Said Kalama & 3 others [2018] KEELC 4511 (KLR)

Environment and Land Court
14 February 2018
885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that a time-bar defence based on disputed dates needs evidence at trial, not a shortcut objection.

What this practically means

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Executive summary

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This is a ruling on a preliminary point of law raised by the 1st defendant on 28 January 2015, contending that the plaintiffs' suit concerning CR No 122/MN/II/390 was time barred under section 7 of the Limitation of Actions Act (Cap 22). The 1st defendant argued that the cause of action accrued on 8 April 1993 when the plaintiffs were registered as owners, relying on Francis Gitonga Macharia v Muiruri Waithaka, Titus Kigoro Munyi v Peter Mburu Kimani and Maweu v Liu Ranching & Farming Co-operative Society Ltd, and pointing to a replying affidavit referring to a 1996 meeting. The plaintiff opposed, citing Mukisa Biscuit Co Ltd v West End Distributors and Samuel Waweru v Geoffrey Mwangi, contending that a preliminary objection must be a pure point of law, that the date of the defendants' entry onto the land was disputed, and that affidavit material cannot found such an objection. Omollo J held that the 1st defendant misunderstood section 7: a registered owner's rights persist unless extinguished by law, so the cause of action did not accrue on registration. In adverse possession, possession and the proprietor's knowledge must be proved by facts. Since the pleadings conflict on whether the defendants entered in 1996 or 2014, the issue requires evidence and fails the Mukisa Biscuit standard for a preliminary objection. The objection was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether limitation under section 7 of Cap 22 barred the suit

Holding

The objection failed because the claim in adverse possession depends on facts (date of entry and knowledge of possession) that require trial evidence

Reasoning

The court held the 1st defendant misapprehended section 7: a registered owner's rights persist unless extinguished by law, so the cause of action did not accrue on registration in 1993. In an adverse possession claim, possession and the registered proprietor's knowledge must be established by facts. Since the parties' pleadings conflict on when the defendants entered the land (1996 meeting versus 2014), the issue requires evidence and cannot be resolved as a pure point of law.

p. 3
02

Whether an affidavit can be relied on to sustain a preliminary objection

Holding

Affidavit contents relied on to raise a disputed factual question disqualify the objection

Reasoning

The plaintiff, citing Mukisa Biscuit and Samuel Waweru, argued that a preliminary objection must concern law only and that there must be no proper contest as to the facts presented in the pleadings. The 1st defendant relied on a document annexed to a replying affidavit showing a 1996 meeting, which put the date of entry in dispute; the court accepted that this required evidence, so the objection did not meet the Mukisa Biscuit standard.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law that does not require facts to be ascertained through evidence
  • A registered owner's rights are not extinguished merely by the passage of time; the cause of action accrues when the owner seeks to enforce those rights

Court orders

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  1. 1.The preliminary objection raised by the 1st defendant is dismissed
  2. 2.Costs of the preliminary objection awarded to the plaintiffs

Authorities

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Legislation

  • Limitation of Actions Actsection 7

Cases cited (7)

  • Francis Gitonga Macharia vs Muiruri Waithaka
    (1998) eKLR
  • Titus Kigoro Munyi vs Peter Mburu Kimani
    (2015) eKLR
  • Maweu vs Liu Ranching & Farming Co-operative Society Ltd
    (1985) eKLR
  • Mukisa Biscuit Co. Ltd vs West End Distributors (1969) Mwangi
    (2014) E. A 696
  • Samuel Waweru vs Geoffrey Mwangi
    (2014) eKLR
  • Kimani Ruchire vs Swift Rutherfords & Co Ltd
    (1980) KLR 10
  • Gicharu Kariri vs Peter Njoroge Mairu, NBI C.A No 293 of 2002
Jurisdiction invoked
First-instance jurisdiction of the Environment and Land Court over a suit land matter; preliminary objection raised under section 7 of the Limitation of Actions Act (Cap 22)

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, "Two Thirds Investiment Limited & 10 others v Katana Said Kalama & 3 others [2018] KEELC 4511 (KLR)", Case Analysis (2018). ELC No. 232 of 2014 (suit property CR No 122/MN/II/390). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4511/eng@2018-02-14

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