John Lemiso Ole Lekakeny v David Kipkurui Kandie [2020] KEELC 3441 (KLR)

The plaintiff pleaded trust and asserted the cause of action accrued on 15th February 2019 upon judgment in Mombasa ELC Case No. 22 of 2012, while the defendant contended limitation ran from execution of the agreement on 7th January 2010. The court held the parties are at variance on when the cause of action arose, that this is a matter of fact to be proved at trial, and that investigating it would convert the objection into a mini-trial, disqualifying it as a preliminary objection.

Applying Hatimy, Yaya Limited and D.T. Dobie, the court reiterated that a plaintiff is entitled to pursue a claim however improbable its chances unless the defendant demonstrates shortly and conclusively that it is bound to fail. The plaint pleads that the defendant holds the property in trust, paid only Kshs.300,000 of the purchase price, and seeks declarations and revocation of the lease and sale agreement, raising triable issues deserving a full trial.

The court applied Giella v Cassman Brown and Mrao Ltd v First American Bank, and adopted Suleiman v Amboseli Resort to hold the court may consider the overriding objective and choose the lower risk of injustice. Since the plaintiff's concern was alienation or disposal of the suit property, orders safeguarding and maintaining the status quo until the suit was determined were fair and appropriate.