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ELCStruck Out· [2020] KEELC 745 (KLR)

Salim Mohamed Salim Tweshe v Khalid Salim Naaman & 5 others [2020] KEELC 745 (KLR)

Environment and Land Court
19 October 2020
CYC.K. Yano
1,403 words in judgment
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The bottom line

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A Kenyan land buyer who waited 35 years to sue over a 1983 plot purchase lost everything because the court held the claim was filed far too late.

What this practically means

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Executive summary

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The defendants raised a preliminary objection dated 25th September 2020 seeking dismissal of the plaintiff's suit on the ground that it was time barred, being founded on a contract of sale over Plot No. 539/111/MN (T/140) at Mtwapa, Mombasa. The plaintiff, by plaint filed on 2nd October 2018, sought a declaration of overriding interest over the plot, a mandatory injunction compelling the defendants to effect a transfer, or in the alternative an order compelling the Registrar of Titles to dispense with their consent and effect the transfer, plus costs. The plaintiff pleaded that he purchased the plot in 1983 through the vendors' authorized agent, paid the full purchase price of Kshs.7,000, procured a deed plan in 1990, but the defendants refused to execute transfer instruments. The defendants contended that under Section 4 of the Limitation of Actions Act a contract claim must be filed within six years, and a declaration over land within twelve years; the suit filed 35 years later was unsustainable. The plaintiff's counsel countered that the objection failed the Mukisa Biscuits threshold because the accrual date was disputed, and that the claim was declaratory. C.K. Yano J applied Mukisa Biscuits, held that a plea of limitation is a pure point of law apparent on the pleadings, and that determining it required no factual mini-trial. The suit was found statute barred under Sections 4 and 7 of the Limitation of Actions Act, the preliminary objection was upheld, the plaintiff's suit was struck out with costs to the defendants, and the judgment was delivered electronically at Mombasa on 19th October 2020 due to the COVID-19 pandemic.

Key legal issues

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01

Whether the suit is time barred under the Limitation of Actions Act

Holding

Yes - the claim founded on the 1983 sale contract was filed on 2nd October 2018, far beyond both the six-year contractual limitation and the twelve-year land recovery limitation

Reasoning

The court examined the plaint, which pleaded that the cause of action arose on 14th May 1983 upon execution of the sale agreement. Applying Section 4(1)(a) of the Limitation of Actions Act for contract claims and Section 7 for recovery of land, the court found the suit filed some 35 years later was statute barred. The plaintiff's contention that the accrual date was disputed did not assist, as the plaint itself disclosed the limitation bar and no evidence was required.

p. 2
02

Whether the objection qualifies as a preliminary objection under the Mukisa Biscuits threshold

Holding

Yes - the plea of limitation is a pure point of law apparent on the face of the pleadings, requiring no ascertainment of facts or exercise of discretion

Reasoning

Applying Law J.A.'s and Sir Charles Newbold's formulations in Mukisa Biscuits, the court held that a plea of limitation is an example of a proper preliminary objection. The plaintiff's argument that the accrual date was disputed did not convert the objection into a factual inquiry; the court was confined to the pleadings, which showed a contract-based claim from 1983. Determining the objection would save the parties the cost of a lengthy trial.

p. 2

Legal principles established

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  • A preliminary objection consists of a pure point of law which, if argued, may dispose of the suit, and cannot be raised if any fact has to be ascertained or judicial discretion exercised
  • If a court is invited to conduct a mini-trial on facts to establish whether a preliminary objection is valid, the objection ceases to be a preliminary objection
  • An action founded on contract may not be brought after six years, and an action to recover land after twelve years, from the date the cause of action accrued

Court orders

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  1. 1.The defendants' preliminary objection dated 25th September 2020 is upheld
  2. 2.The plaintiff's suit is struck out
  3. 3.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 4(1)(a)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7

Cases cited (1)

  • Mukisa Biscuits Co. Ltd –v- West End Distributors Limited
    (1969) EA 697
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (title no. 539/111/MN (T/140), Mtwapa, Mombasa County); not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Salim Mohamed Salim Tweshe v Khalid Salim Naaman & 5 others [2020] KEELC 745 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/745/eng@2020-10-19

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