Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the extract· [2019] KEELC 669 (KLR)

Edgar Kadenyi v Attorney General & another;National Water Conservtion & Pipeline Corporation (Interested Party) [2019] KEELC 669 (KLR)

Environment and Land Court
27 November 2019
NMN. A. Matheka
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a limitation-based preliminary objection, confirming that objections requiring facts to be investigated cannot shortcut a full hearing.

What this practically means

#

Executive summary

#
The interested party raised a preliminary objection seeking dismissal of the plaintiff's application dated 2nd May 2019 on the ground that it had been overtaken by time under section 4(4) of the Limitation of Actions Act Cap 22, the plaintiff having allegedly neglected or refused to execute a judgment delivered on 4th February 2000 for 19 years. The interested party relied on three authorities on limitation of execution. The plaintiff opposed the objection on two grounds: first, that it was filed on 8th July 2019 by an advocate who was not formally on record, the firm of Justus A. Wabuyabo filing its notice of appointment only on 31st July 2019; and second, that the objection was an afterthought aimed at delaying the matter. The plaintiff recounted a chronology showing that on 8th October 2018 the parties consented to withdraw two applications and negotiate a joint valuation of the suit land, that valuation dates were proposed by letter, and that when the valuation exercise was attempted on 25th April 2019 it failed because the interested party's officials opposed it, prompting the application of 2nd May 2019. The court, applying the Mukisa Biscuit definition of a preliminary objection and Oraro v Mbajja, held that the limitation issue involved matters of fact, having apparently been compromised by the parties' consent to undertake a joint valuation, and that the court needed to investigate the facts through a full hearing. The preliminary objection was found unmerited and struck out with costs, leaving the plaintiff's substantive application to be heard.

Key legal issues

#
01

Whether the limitation objection could properly be raised as a preliminary objection

Holding

The objection was not a pure point of law because whether the plaintiff's application was overtaken by limitation time involved factual matters, particularly the parties' consent to a joint valuation which compromised the issue; the objection was struck out with costs.

Reasoning

The court applied the classic definition of a preliminary objection in Mukisa Biscuit and Oraro v Mbajja, holding that a matter requiring investigation of facts cannot be raised as a preliminary point. The plaintiff's chronology showed that parties had consented to withdraw applications and negotiate a joint valuation of the suit land, and the valuation was frustrated by the interested party's officials. These factual disputes could not be resolved without hearing the application, so the objection failed.

p. 3

Legal principles established

#
  • A preliminary objection cannot be sustained where facts require investigation or ascertainment before determination.
  • Any assertion claiming to be a preliminary objection that bears factual aspects calling for proof is not a true preliminary objection.

Court orders

#
  1. 1.The preliminary objection raised by the interested party is struck out with costs

Authorities

#

Legislation

  • Limitation of Actions Act Cap 22 Laws of Kenyasection 4(4)

Cases cited (5)

  • Danson Murithii vs Evanson Mithamo Muroko Kerugoya HCC 305 of 2013
  • Willis Onditi Odhiambo vs Gateway Insurance Co. Ltd Kisumu Civil Appeal No. 37 of 2013 (2014) eKLR
    (2014) eKLR
  • Moses Kipkurui Bor vs John Chirchir (2019) eKLR
    (2019) eKLR
  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    [2005] e KLR
Jurisdiction invoked
Original civil jurisdiction over the suit land matter; no specific constitutional or statutory provision invoked in the ruling

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Edgar Kadenyi v Attorney General & another;National Water Conservtion & Pipeline Corporation (Interested Party) [2019] KEELC 669 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/669/eng@2019-11-27

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