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ELCPartially AllowedThika ELC (Preliminary Objection dated 28th August 2020 in suit filed 4th August 2020)· [2021] KEELC 3842 (KLR)

Hannah Wanjiru Mburu v Simon Nyutu Mararo & 3 others [2021] KEELC 3842 (KLR)

Environment and Land Court
18 March 2021
2,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st and 2nd Defendants/Objectors raised a preliminary objection seeking dismissal of the Plaintiff's suit on grounds of res judicata (a previous suit, Thika ELC No. 254 of 2017, having been dismissed for want of prosecution on 31st October 2017 and a reinstatement application dismissed on 9th July 2020), limitation under Section 4 of the Limitation of Actions Act, and want of capacity under Order 4 of the Civil Procedure Rules. The court, per L. Gacheru J, applied Mukisa Biscuits v West End Distributors and Oraro v Mbaja on the definition of a preliminary objection. It held that res judicata requires ascertainment of facts and probing of evidence and cannot be raised as a preliminary objection, following Khaemba v Standard Chartered Bank and Kimani v County Government of Trans Nzoia; that ground therefore failed. However, limitation was held to be a pure point of law going to jurisdiction and properly raised. Although the plaint described the claim as founded on a contract of 23rd July 1985, the plaintiff's own pleading placed accrual in 2008 when the defendants trespassed and refused to perform the contract. The six-year period under Section 4(1) expired in 2014, and the filing of the previous suit did not stop time from running, Order 12 Rule 6 being expressly subject to limitation law. The court upheld the objection in terms of prayers (d) and (f) and struck out the suit entirely as statute barred on 18th March 2021 at Thika, delivering the ruling virtually under the COVID-19 directives.

Key legal issues

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01

Whether res judicata can be raised by preliminary objection

Holding

It cannot; it requires ascertainment of facts and probing of evidence

Reasoning

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.

p. 3
02

Whether the suit was statute barred

Holding

Yes - the cause of action accrued in 2008 on trespass/refusal to transfer, and six years expired in 2014

Reasoning

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.

p. 4
03

Whether limitation is a proper preliminary objection

Holding

Yes; it goes to jurisdiction and is a pure point of law requiring no ascertainment of facts

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 8th August 2020 (dated 28th August 2020) is upheld in terms of prayers (d) and (f)
  2. 2.The suit is statute barred and is struck out entirely

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions ActSection 4 (including 4(1))
  • Limitation of Actions ActSection 26
  • Limitation of Actions ActSection 39
  • Civil Procedure RulesOrder 4
  • Civil Procedure RulesOrder 12 Rule 6 (6(1) and 6(2))
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (9)

  • Peter Ngome Vs Plantex Company limited
    (1983)eKLR
  • Mehta Vs Shah
    (1965)E.A 321
  • Christopher Kenyariri Vs Salama Beach
    (2017)eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Oraro Vs Mbaja
    (2005) 1KLR 141
  • 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
  • Edward Moonge Lengusuranga Vs James Lanaiyara & another
    [2019] eKLR
  • Lillian Njeri Muranja & John Muranja Mahinda Vs Virginia Nyambura Ndiba & Kajiado County Government
    (2014)eklr
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Act (Chapter 21) and Limitation of Actions Act (Chapter 22)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.