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ELCDismissedNot stated in the judgment (suit number not indicated)· [2019] KEELC 644 (KLR)

Daniel Mwangi Nganga v National Water Conservation & Pipeline Corporation & 3 others [2019] KEELC 644 (KLR)

Environment and Land Court
26 November 2019
2,035 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Murang'a refused to strike out a land dispute claim, ruling the objections needed evidence at a full trial.

What this practically means

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Executive summary

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The 2nd Defendant filed a Notice of Motion dated 3/5/2019 under the Limitation of Actions Act, the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules seeking striking out of the Plaint dated 13/8/2018. It contended that the cause of action arose in 1972, making the suit, filed 46 years later, statute barred, and that the dispute had already been adjudicated in HCC No. 976 of 2001, the Water Appeals Board and Misc Civil Application 253 of 2011, rendering it res judicata. The Plaintiff opposed, arguing the application was brought under the wrong provisions, that the negligence was continuous in nature, and that the WAB decision had been quashed by the High Court in JR No. 253 of 2011 so the matters were never finally determined by a competent court. The 1st and 3rd Defendants supported the application without filing pleadings. The court treated the application as a preliminary objection disguised as a motion. On res judicata, it held the WAB decision was quashed for lack of jurisdiction, hence no final determination by a competent court existed, and no orders from HCC No. 976 of 2001 were produced. On limitation, it noted the Plaintiff acquired the suit land only in 1997 despite the 1972 construction, and whether the nuisance was continuing required evidence. Applying the Mukisa Biscuit definition, both issues were not pure points of law. The application was dismissed with costs to the Plaintiff/Respondent, and the matter proceeds to full trial.

Key legal issues

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01

Res judicata

Holding

The plea fails because the WAB decision was quashed for lack of jurisdiction and there was no evidence of a final determination in HCC No. 976 of 2001

Reasoning

The court set out the five ingredients of res judicata under Section 7 of the Civil Procedure Act. It found that the WAB decision was quashed by the High Court in JR No. 253 of 2011 for being ultra vires the Water Act, meaning no competent court finally determined the issues. Further, no proceedings or orders from HCC No. 976 of 2001 were placed on record, so the court could not ascertain what transpired there.

p. 3
02

Limitation of actions

Holding

The limitation objection cannot be resolved on the pleadings; when the cause of action arose requires evidence

Reasoning

Although the water tank was constructed in 1972, the Plaintiff acquired the suit land only in 1997 per the title issued on 25/3/1997. When the cause of action accrued, and whether the negligence and nuisance are continuing, are factual questions requiring evidence at full trial. The claim is for compensation for use of land and nuisance, not recovery of land, so sections 7 and 17 do not plainly bar it.

p. 3
03

Character of the application

Holding

The striking-out application is in substance a preliminary objection, and it fails as it is not a pure point of law

Reasoning

Although urged as a Notice of Motion under Order 2 Rule 15(1)(d), the court considered it a preliminary objection disguised as an application. Applying the Mukisa Biscuit definition, both issues raised required consideration of evidence, removing the objection from the province of a pure point of law. The application was therefore dismissed with costs.

p. 2

Legal principles established

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  • Res judicata cannot found where the prior decision was quashed for lack of jurisdiction, as there was no final determination by a competent court
  • An objection requiring consideration of evidence is not a pure point of law within the Mukisa Biscuit definition

Court orders

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  1. 1.The Notice of Motion dated 3/5/2019 seeking striking out of the Plaint is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent
  3. 3.The matter to proceed to full trial

Authorities

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Legislation

  • Limitation of Actions ActSections 4(2), 7, 17
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 2 Rule 15(1)(d); Order 19 Rule 3
  • Advocates Practice RulesRule 8
  • Water Act2002 (as referenced in the quashing order)

Cases cited (1)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
First-instance civil suit; application under Section 4(2) and 7 of the Limitation of Actions Act, Section 7 of the Civil Procedure Act and Order 2 Rule 15(1)(d) of the Civil Procedure Rules

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, "Daniel Mwangi Nganga v National Water Conservation & Pipeline Corporation & 3 others [2019] KEELC 644 (KLR)", Case Analysis (2019). Not stated in the judgment (suit number not indicated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/644/eng@2019-11-26

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