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ELCDismissedE.L.C. Appeal No. 17 of 2019· [2020] KEELC 1614 (KLR)

Simon Ndwiga Murage v Embu Water And Sanitation Co. Ltd [2020] KEELC 1614 (KLR)

Environment and Land Court
23 July 2020
YAY.M. Angima
3,632 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that damage from completed acts cannot extend limitation periods, dismissing a landowner's delayed claim against Embu Water.

What this practically means

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Executive summary

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The Environment and Land Court at Embu (Y.M. Angima, J) dismissed an appeal against a ruling of Hon. H. Nyakweba (Principal Magistrate) dated 18 June 2019 in Embu CMCC No. 50 of 2018, in which the trial court struck out the Appellant's suit as statute-barred and awarded costs to the Respondent. The Appellant had sued the Respondent for trench-digging along the boundary of his parcel Gaturi/Githimu/6569 in 2011 and 2012 during water pipe installation, claiming loss of napier grass and crops, land reclamation costs of Kshs. 201,800, mesne profits, an injunction and costs. The trial court upheld the Respondent's preliminary objection that the suit was time-barred under Section 4(2) of the Limitation of Actions Act. On appeal, the court framed four issues. First, it held that limitation was properly raised as a preliminary objection since all material facts were pleaded by the Appellant and none required ascertainment. Second, it rejected the Appellant's contention that the cause of action was a continuing one: the acts were completed in 2011-2012, and the authorities on continuing trespass and continuing copyright infringement were distinguishable; consequential damage could not extend limitation ad infinitum. The court affirmed that a statute-barred plaint discloses no reasonable cause of action. Third, it found no error in the award of costs, costs following the event under Section 27(1) of the Civil Procedure Act and appellate interference being confined to the Mbogo v Shah principles. The appeal was dismissed in its entirety with costs to the Respondent.

Key legal issues

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01

Whether a plea of limitation constitutes a proper preliminary objection

Holding

Yes; where the material facts are all pleaded by the plaintiff and no facts need ascertainment, limitation is a pure point of law properly raised as a preliminary objection

Reasoning

Applying Mukisa Biscuits, the court held a preliminary objection must be a point of law argued on the assumption that all facts pleaded by the other side are correct. Here the Appellant himself pleaded the 2011 and 2012 trench-digging and pipe-laying; no further facts required investigation, so the limitation defence was properly entertained as a preliminary objection.

p. 3
02

Whether the Appellant's cause of action was a continuing one so as to defeat limitation

Holding

No; the acts of 2011 and 2012 were completed acts, and long-lasting consequences do not keep the cause of action alive; the suit was statute-barred under Section 4(2) of the Limitation of Actions Act

Reasoning

The authorities relied on (Macmillan, Gachiri, Kibui) concerned genuinely continuing trespasses such as overhanging structures, continuing copyright infringement, or power lines remaining on land. By contrast, the trench-digging, cutting of napier grass and pipe installation were one-off completed acts; the resulting storm water damage was consequential and could not extend limitation ad infinitum.

p. 4
03

Whether the trial court erred in awarding the Respondent costs

Holding

No; costs follow the event under the proviso to Section 27(1) of the Civil Procedure Act and no error of principle or failure to exercise discretion judicially was shown

Reasoning

The general rule is that costs follow the event and a successful party should ordinarily get costs absent good reason. Following Mbogo & Another v Shah, an appellate court interferes with a discretionary award only where the trial court misdirected itself or was clearly wrong. No such misdirection was demonstrated here.

p. 5

Legal principles established

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  • A preliminary objection on limitation may properly be raised where all material facts are pleaded by the adverse party and no facts require ascertainment
  • Consequential or long-lasting damage from completed acts does not make a cause of action a continuing one and does not extend the limitation period
  • A statute-barred plaint cannot disclose a reasonable cause of action
  • An appellate court should not lightly interfere with a trial court's award of costs

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The Respondent is awarded costs of the appeal

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 27
  • Civil Procedure ActSection 27(1)
  • Public Authorities Limitation of Actions ActCap. 39

Cases cited (12)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Haron Onyancha v National Police Service Commission & Another
    [2017] eKLR
  • Alfred Mutinda Mutua v C.F.C. Stanbic Bank (K) Ltd
    [2019] eKLR
  • Macmillan Kenya (Publishers) Ltd v Mount Kenya Sundries
    [2008] eKLR
  • Eliud Njoroge Gachiri v Stephen Kamau Ng'ang'a
    [2018] eKLR
  • Peter Mwangi Kibui v Rural Electrification Authority
    [2016] eKLR
  • Gathoni v Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Rawal v Rawal
    [1990] KLR 275
  • Mehta v Shah
    [1965] EA 321
  • Iga v Makerere University
    [1972] EA 65
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • Mbogo & Another v Shah
    [1968] EA 93
On appeal from
Chief Magistrate's Court, Embu
Embu CMCC No. 50 of 2018
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court ruling in Embu CMCC No. 50 of 2018

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Simon Ndwiga Murage v Embu Water And Sanitation Co. Ltd [2020] KEELC 1614 (KLR)", Case Analysis (2020). E.L.C. Appeal No. 17 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1614/eng@2020-07-23

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