Kagwe Tea Factor Company Limited v Grace Jelat Kipchoim & 83 others ; Kenya Forst Service and 3 others (Interested Party) [2019] KEELC 1076 (KLR)

The Milimani suit sought enforcement of a professional undertaking given between two advocate firms arising from the 88 sale agreements; the court was not enjoined to inquire into the legality of the original cause. The present suit is hinged on the sale agreements themselves and the Defendants' lack of capacity to sell. The issues and parties in the previous case were neither the same nor litigating under the same title as in the present suit.

Although Section 7 bars actions to recover land after twelve years, the claim in the plaint arises from breach of the sale agreements executed on 30th September 2016. Under Section 4(1)(a), actions founded on contract must be brought within six years. The cause of action arose on 25th October 2017 when the alleged illegality was discovered, so the suit filed in October 2018 was within time.

Whether the suit land was public land that was not lawfully de-gazetted by Legal Notice No. 151 of 2001 is a factual question requiring probing of evidence. Such a question cannot be resolved at a preliminary stage and falls outside the Mukisa Biscuits definition of a preliminary objection. The ELC otherwise has jurisdiction under Section 13 of the Environment and Land Court Act to interrogate the legality of titles.

Applying Article 159(2) of the Constitution and Sections 1A and 3A of the Civil Procedure Act, and mindful that land matters are sensitive, the court held that a preliminary objection attacking its jurisdiction ought to take precedence over any other application and be disposed of in the first instance. The objection was therefore admitted despite procedural objections and parties were directed to file written submissions.