Benjamin Kirwa Kemboi v William Birgen & another [2019] KEELC 1091 (KLR)
The bottom line
#A Kenyan court ruled that objections to an extension of time to file a land case must be argued at trial, not through preliminary applications.
What this practically means
#Executive summary
#Key legal issues
#Whether the court can entertain an application to review or set aside leave granted ex parte under Section 27 of the Limitation of Actions Act
The court cannot entertain the application; the applicant is not estopped from raising limitation at trial but cannot do so by way of review or setting aside.
Relying on Cozens v North Devon Hospital Management Committee as adopted in Yunes K. Oruta v Samuel Nyamato and Joseph Njuguna Muniu v Medicino Giovanni, the court held that leave granted ex parte under the limitation regime is merely provisional and the trial judge must rule finally whether the plaintiff has overcome the time bar. An interlocutory application to discharge the order would render the ex parte provision nugatory.
Whether citing wrong provisions of law defeats the application
No; the defect is curable and does not affect the substance or jurisdiction.
Following Odunga J in Republic v Anti-Counterfeit Agency Ex-Parte Surgipharm Ltd and Angima J in Horida Wanjuki Njeru Ireri, and applying Order 51 Rule 10 of the Civil Procedure Rules, Article 159(2)(d) of the Constitution and Section 19 of the Environment and Land Court Act, the court held that citing wrong provisions is a non-issue that cannot affect the court's jurisdiction.
Whether the suit should be transferred from the Chief Magistrates' Court to the ELC
No; the Chief Magistrates' Court has jurisdiction and the applicant can raise all limitation issues at trial there.
The court found no reason to transfer the suit since the forum where it was filed can determine the limitation question at trial, making the transfer request unnecessary alongside the dismissal of the review application.
Legal principles established
#- An ex parte order granting leave to file a suit out of time under the Limitation of Actions Act is provisional and can only be challenged at the trial of the suit, not by an interlocutory application to discharge or review it.
- Citation of the wrong legal provisions in an application is not fatal where the court otherwise has jurisdiction.
Court orders
#- 1.The application dated 3rd April 2019 seeking review and setting aside of the orders of 17th December 2018 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Environment and Land Court Act; Limitation of Actions Act (Cap 22) Sections 27 and 28
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kirwa Kemboi v William Birgen & another [2019] KEELC 1091 (KLR)", Case Analysis (2019). Eldoret CMC E&L No. 322 of 2018 (application dated 3rd April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1091/eng@2019-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.