Kipngochoch Farm Co Limited v Obadiah K Kipkorir & 5 others [2020] KEELC 2964 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
The court held that the objection, being on limitation, was a pure point of law and properly raised as a preliminary objection.
The court recited the Mukisa Biscuit test, noting that a preliminary objection must be a pure point of law requiring no ascertainment of facts and no exercise of discretion. It found that whether a suit is caught by the Limitation of Actions Act is a question of law determinable on the pleadings, so the objection qualified as a preliminary objection, even though its success depended on when limitation began to run.
Whether the suit was statute-barred
The objection failed because the commencement date of the limitation period was contested and could only be established by evidence at trial.
The plaintiff asserted it only discovered the alleged fraud after 2006 upon a change of directorship, while the defendants contended the causes of action accrued between 1984 and 1993. If limitation ran from 1984/1993 the suit would be barred; if from discovery in 2006, the 2012 suit would be within time. Since when the plaintiff came to know of the fraud is a matter of evidence for trial, the preliminary objection was unsustainable.
Legal principles established
#- A preliminary objection on limitation is a pure point of law that may properly be raised as such
- Where an action is based on fraud, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud, and when discovery occurred is a matter for trial
Court orders
#- 1.The preliminary objection dated 13th September 2019 is dismissed with costs to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcels Solai/Ndungiri Block 1/223 and 1/235
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipngochoch Farm Co Limited v Obadiah K Kipkorir & 5 others [2020] KEELC 2964 (KLR)", Case Analysis (2020). Not stated in the extract (Amended Plaint dated 17th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2964/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.