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ELCDismissedNot stated in extract (Suit filed 15th January 2021)· [2021] KEELC 3403 (KLR)

Josephat Njuguna Karugu v Margaret Nduta Ngugi & 2 others [2021] KEELC 3403 (KLR)

Environment and Land Court
6 May 2021
LGL. Gacheru
3,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan land court threw out defendants' attempt to strike out a land dispute suit, ruling the limitation defence was improperly framed and that time stopped during an appeal.

What this practically means

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Executive summary

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The court ruled on a Notice of Preliminary Objection dated 4th February 2021 by which the Defendants/Objectors sought to strike out the Plaintiff's suit on five grounds: abuse of process, limitation under Section 7 of the Limitation of Actions Act, res judicata in light of Succession Cause No. 1213 of 2001, the existence of a parallel eviction application, and want of compliance with the law. Applying the Mukisa Biscuit test, the court held that grounds 1, 3, 4 and 5 were not pure points of law because they required probing of evidence and ascertainment of facts, and were therefore improperly raised as preliminary objections. Ground 2 (limitation) qualified as a pure point of law. On the merits of that ground, the court found the cause of action accrued on 15th February 2008 when the transactions on the deceased's title were revoked, but time stopped running while the Plaintiff's appeal against that decision was pending, resuming on 7th October 2015 when the appeal was dismissed. The contention that the death of one administrator suspended limitation failed because under Section 81 of the Law of Succession Act the surviving administrators could continue the estate's duties. As the suit was filed on 15th January 2021, within six years of the appeal's dismissal, the claims for specific performance and adverse possession were not time barred. The preliminary objection was dismissed with costs and the suit was directed to be heard and determined on merit.

Key legal issues

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01

Whether the five grounds of the preliminary objection qualify as preliminary objections

Holding

Grounds 1, 3, 4 and 5 (abuse of process, res judicata, parallel proceedings, want of compliance) are not pure points of law; only ground 2 (limitation) qualifies

Reasoning

The court applied the Mukisa Biscuit test and authorities holding that res judicata and abuse-of-process grounds require ascertainment and probing of evidence and are therefore improperly raised as preliminary objections. Only the limitation ground, being a question of law on the pleadings, met the test and was determined on its merits.

p. 2
02

Whether the suit is time barred under Section 7 of the Limitation of Actions Act

Holding

No. The cause of action accrued on 15th February 2008 when the transactions were revoked, but time stopped running during the appeal and resumed on 7th October 2015 when the appeal was dismissed; the suit filed on 15th January 2021 is within time

Reasoning

The court held the revocation of the transactions in 2008 constituted the set of facts justifying the right to sue. The plaintiff's appeal suspended time until its dismissal on 7th October 2015. The contention that the death of one administrator suspended time failed because under Section 81 of the Law of Succession Act the surviving administrators could carry on the estate's duties.

p. 4
03

Whether the death of one administrator prevented the plaintiff from filing suit

Holding

No. The estate had other administrators; under Section 81 of the Law of Succession Act the powers and duties of a deceased personal representative vest in the survivors

Reasoning

The court relied on Section 81 of the Law of Succession Act, which vests the powers and duties of deceased executors or administrators in the survivors, to reject the plaintiff's explanation for the delay between 2015 and 2021 as a ground for suspending limitation.

p. 4

Legal principles established

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  • A preliminary objection must consist of 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
  • Res judicata and abuse of process grounds requiring probing of evidence are not properly raised by way of preliminary objection
  • A claim for specific performance of a contract for sale of land must be brought within six years; time stops running where the plaintiff asserts his right by an appeal

Court orders

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  1. 1.The Notice of Preliminary Objection dated 4th February 2021 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff/Respondent
  3. 3.The suit to be heard and determined on merit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 26
  • Limitation of Actions ActSection 39
  • Law of Succession ActSection 81
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (9)

  • Danson Muniu Njeru Vs William Kiptarbei Korir & 6 others
    (2014) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Henry Wanyama Khaemba Vs Standard Chartered Bank Ltd & Another
    (2014) EKLR
  • George Kamau Kimani & 4 Others Vs County Government of Trans Nzoia & Another
    (2014) eKLR
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • United Insurance Co. Ltd Vs Scholastica A. Odera
    Kisumu HCCA No.6 of 2005
  • Owners of Motor Vessel 'Lilian S' Vs Caltex Oil (Kenya) LTD
    (1989) 1 KLR
  • Edward Moonge Lengusuranga Vs James Lanaiyara & another
    [2019] eKLR
  • William Gatuhi Murathe Vs Gakuru Gathimbi
    [1998] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; the ruling determines a Notice of Preliminary Objection dated 4th February 2021

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Josephat Njuguna Karugu v Margaret Nduta Ngugi & 2 others [2021] KEELC 3403 (KLR)", Case Analysis (2021). Not stated in extract (Suit filed 15th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3403/eng@2021-05-06

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