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ELCDismissedSuit dated 30th April, 2019· [2020] KEELC 2891 (KLR)

Joseph Kibaara M'Icuga v M'Chabari Kinoro [2020] KEELC 2891 (KLR)

Environment and Land Court
5 May 2020
PNP. M. Njoroge
2,593 words in judgment
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The bottom line

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Kenya's Environment and Land Court at Chuka refused to dismiss an adverse possession claim early, ruling that how long someone occupied land needs a full hearing.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Chuka (P. M. Njoroge, J) determined a Notice of Preliminary Objection dated 24th February, 2020 filed by the respondent in the applicant's suit dated 30th April, 2019 seeking a declaration of adverse possession over 2 acres of land. The respondent argued that the suit was premature because time under Sections 37 and 38 of the Limitation of Actions Act could only run from the respondent's registration as proprietor on 28th November, 2014, so 12 years had not elapsed by filing, and that the suit was scandalous, frivolous and an abuse of process, relying on Mukisa Biscuits, Hassan Ali Joho, Hassan Nyanje Charo, Aviation & Allied Workers Union, and the adverse possession decisions in Kimunyu v Joreth and Munyi v Kimani. The applicant contended he had occupied the land for over 70 years, that the registration date was a matter of evidence rather than a pure point of law, and that the respondent's title had long been extinguished. The court held that both grounds invited arguments and factual inquiries resolvable only at the hearing of the suit, and accordingly dismissed the preliminary objection, with costs in the cause. The court directed both parties to comply with Order 11 of the Civil Procedure Rules within 30 days and fixed the main suit for hearing on 14th October, 2020. Delivery of the ruling had been delayed from 24th March, 2020 due to the Covid-19 crisis.

Key legal issues

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01

Whether the preliminary objection on prematurity of the adverse possession claim is a pure point of law

Holding

The objection failed; the question whether the applicant achieved the 12-year threshold of occupation requires evidence and can only be resolved at the hearing of the suit

Reasoning

The court applied the Mukisa Biscuits threshold that a preliminary objection must be a pure point of law argued on assumed facts, with no fact to be ascertained. Whether the applicant had occupied the land for the requisite 12 years, and when time began to run, were matters of fact and evidence. The court therefore held the first ground invited arguments for the full hearing and dismissed the objection, with directions for Order 11 compliance and a hearing date.

p. 4
02

Whether the suit is scandalous, frivolous and an abuse of court process

Holding

This ground also failed as it required factual arguments properly reserved for the trial

Reasoning

Ground 2 of the preliminary objection alleged the suit was scandalous, frivolous and an abuse of process for attempting to create non-existent property rights. The court held this framing likewise invited arguments suitable only for the hearing of the main suit. Consequently, both grounds of the objection were unsustainable at the interlocutory stage and the notice was dismissed, with costs in the cause.

p. 4

Legal principles established

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  • A ground in a preliminary objection that requires determination of disputed facts or invites arguments for trial cannot be sustained as a pure point of law

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed
  2. 2.Costs shall be in the cause
  3. 3.The Applicant to fully comply with Order 11 of the Civil Procedure Rules within 30 days of today
  4. 4.The respondent to fully comply with Order 11 of the Civil Procedure Rules within 30 days after receipt of the applicant's compliance documents
  5. 5.The main suit to be heard on 14th October, 2020

Authorities

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Legislation

  • Limitation of Actions ActSections 37, 38(1)
  • Limitation of Actions ActSection 17
  • Land Registration ActSection 26(1)
  • Civil Procedure Rules, 2010Order 37 Rule 7(2); Order 11
  • Civil Procedure ActSections 1A(1)(2)(3), 1B(1)(A)(B)(C)(D)
  • Constitution of KenyaArticle 159(2)(a)(d)(e)

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors
    [1969] EA 696
  • Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others
    Petition No. 10 of 2013, [2014] eKLR
  • Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others
    Civil Application No. 23 of 2014, [2014] eKLR
  • Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 Others
    Application No. 50 of 2014, [2015] eKLR
  • Patrick Magu Mwangi Kimunyu v. Joreth Limited
    (2015) eKLR
  • Titus Kigoro Munyi v. Peter Mburu Kimani
    (2015) eKLR
Jurisdiction invoked
First-instance jurisdiction of the Environment and Land Court over the Originating Summons claim for adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Kibaara M'Icuga v M'Chabari Kinoro [2020] KEELC 2891 (KLR)", Case Analysis (2020). Suit dated 30th April, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2891/eng@2020-05-05

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