Two Thirds Investiment Limited & 10 others v Katana Said Kalama & 3 others [2018] KEELC 4511 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether limitation under section 7 of Cap 22 barred the suit
The objection failed because the claim in adverse possession depends on facts (date of entry and knowledge of possession) that require trial evidence
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.
Whether an affidavit can be relied on to sustain a preliminary objection
Affidavit contents relied on to raise a disputed factual question disqualify the objection
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.
Legal principles established
#- 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
#- 1.The preliminary objection raised by the 1st defendant is dismissed
- 2.Costs of the preliminary objection awarded to the plaintiffs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.