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ELCStruck OutMombasa ELC Case (as per pleadings; not stated in full in the judgment)· [2020] KEELC 1686 (KLR)

Mildred Akoth Warrakah v Mwafumbiri Hamisi Mwatsami [2020] KEELC 1686 (KLR)

Environment and Land Court
15 July 2020
CYC.K. Yano
1,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out both a land dispute claim and counter-claim because neither side filed within the 12-year legal deadline.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (C.K. Yano, J) determined two cross preliminary objections: the plaintiff's dated 5th March 2019 seeking striking out of the defendant's counter-claim as time barred, and the defendant's dated 20th March 2019 seeking dismissal of the plaintiff's suit as time barred, void under Section 6 of the Land Control Act, and unsupported by a prima facie case. Both objections were canvassed by written submissions. The plaintiff, administratrix of the estate of the late Captain Gakweli Mohamed Warrakah, pleaded that the suit plot was bought at auction in 1988 and registered in her late husband's name in 1994, and sought a declaration of trespass, eviction and demolition. The defendant claimed to be a son of the original owner, alleged fraud in the auction, and counter-claimed for reversion of the property and a permanent injunction. Applying Mukisa Biscuits, the court held that only limitation was a proper point of law; the Land Control Board consent issue depended on disputed facts. On the pleadings, the cause of action arose in 1994 upon registration, so under Section 7 of the Limitation of Actions Act both the suit and the counter-claim for recovery of land were time barred. Both preliminary objections were upheld, the suit and counter-claim were struck out in their entirety, and each party was directed to bear their own costs.

Key legal issues

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01

Whether the suits were proper preliminary objections

Holding

Only the limitation question was a proper preliminary objection; the Land Control Board consent objection relied on disputed facts

Reasoning

Applying Mukisa Biscuits, the court held that limitation is a pure point of law, whereas the claim that Land Control Board consent was not obtained depends on facts requiring ascertainment and should have been raised by application, not preliminary objection.

p. 2
02

Limitation of both the suit and counter-claim

Holding

Both the plaintiff's suit and the defendant's counter-claim for recovery of land were time barred under Section 7 of the Limitation of Actions Act

Reasoning

The court found from the pleadings that the cause of action arose in 1994 upon registration of the suit land in the name of the late Captain Gakweli Warrakah following the 1988 auction. More than twelve years having elapsed, neither party's action for recovery of land could be sustained under Section 7.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
  • An action to recover land may not be brought after twelve years from the date the right of action accrued

Court orders

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  1. 1.Both the plaintiff's preliminary objection dated 5th March 2019 and the defendant's preliminary objection dated 20th March 2019 are upheld
  2. 2.The suit and the counter-claim are struck out in their entirety
  3. 3.No order for costs; each party to bear their own costs of the preliminary objections and the suit

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7
  • Land Control ActSection 6

Cases cited (6)

  • Mukisa Biscuits Manufacturing Ltd –v- West End Distributors Ltd
    (1969) EA 696
  • Giella –v- Cassman Brown
    (1973) EA 358
  • Benson Mogeni Arita (suing as the personal representative of Stephano Mogeni –deceased –v- Abel Karura Tineka & 7 Others
    (2017) eKLR
  • Eunice Karimi Kibunja –v- Rigi Maingera Kibunja
    C.A. No. 103 of 1996
  • BIB Insurance Agencies Limited –v- Nitin Shah & Others
    (2006) 2 EA 26
  • Mistry Amary Singh –v- Kulibya
    (1963) EA 408
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (provision not 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 (2)

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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, "Mildred Akoth Warrakah v Mwafumbiri Hamisi Mwatsami [2020] KEELC 1686 (KLR)", Case Analysis (2020). Mombasa ELC Case (as per pleadings; not stated in full in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1686/eng@2020-07-15

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