Hannah Wanjiru Mburu v Simon Nyutu Mararo & 3 others [2021] KEELC 3842 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether res judicata can be raised by preliminary objection
It cannot; it requires ascertainment of facts and probing of evidence
The court applied Mukisa Biscuits and Oraro v Mbaja on the definition of a preliminary objection and followed authorities holding that res judicata requires probing of evidence and is best raised by notice of motion with pleadings annexed. The res judicata grounds therefore failed as preliminary objections.
Whether the suit was statute barred
Yes - the cause of action accrued in 2008 on trespass/refusal to transfer, and six years expired in 2014
Though pleaded as founded on a 1985 contract, the plaintiff's own pleading placed accrual in 2008 when the defendants trespassed and refused to perform the contract. Section 4(1) allows six years for contract actions; time expired in 2014. The prior dismissed suit did not stop time running under Order 12 Rule 6 which is subject to limitation laws.
Whether limitation is a proper preliminary objection
Yes; it goes to jurisdiction and is a pure point of law requiring no ascertainment of facts
The court held that the issue of limitation goes to the jurisdiction of the court and requires only a determination of what the law says, without probing of evidence, thus meeting the Mukisa Biscuits test for a preliminary objection.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained.
- Res judicata is not a proper ground for a preliminary objection because it requires probing of evidence; it should be raised by notice of motion.
- Filing a previous suit does not stop the statutory limitation period from running; a fresh suit after dismissal for want of prosecution must still be within the limitation period.
- An action founded on contract may not be brought after six years from the date the cause of action accrued.
Court orders
#- 1.The Notice of Preliminary Objection dated 8th August 2020 (dated 28th August 2020) is upheld in terms of prayers (d) and (f)
- 2.The suit is statute barred and is struck out entirely
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; Civil Procedure Act (Chapter 21) and Limitation of Actions Act (Chapter 22)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ng'ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others[2023] KEELC 16692 (KLR)30 Mar 2023
- Zacharia Mburu Chege v Naku Dwellers Ltd & another [2022] KEELC 2005 (KLR)[2022] KEELC 2005 (KLR)25 Jan 2022
Cite this brief
#Cite this brief
Caselaw, "Hannah Wanjiru Mburu v Simon Nyutu Mararo & 3 others [2021] KEELC 3842 (KLR)", Case Analysis (2021). Thika ELC (Preliminary Objection dated 28th August 2020 in suit filed 4th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3842/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.