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ELCDismissedNot stated in judgment· [2021] KEELC 3896 (KLR)

Gregory Muthiani v Standard Bank Limited [2021] KEELC 3896 (KLR)

Environment and Land Court
16 March 2021
CYC.K. Yano
2,410 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 Respondent raised a preliminary objection dated 3rd August 2020 against the Petitioner's constitutional petition seeking declarations that the 1983 public auction of LR No. 4118/286 and LR No. 4118/287 in Taveta was illegal and fraudulent, and that the Petitioner is the legal owner of the properties. The Respondent argued the petition was res judicata under Section 7 of the Civil Procedure Act, being a re-litigation of a 1981 suit, and time barred under Section 4 of the Limitation of Actions Act, having been filed some 38 years after the cause of action arose. The Petitioner opposed, contending that res judicata required ascertainment of facts and that limitation does not apply to constitutional petitions, for which no statutory timelines exist. The court applied the Mukisa Biscuit test and held that a plea of limitation is properly raised by preliminary objection. On the pleadings, the Petitioner was sued in 1981, instructed counsel, and learnt of the auction in 1983; the petition filed in November 2019 was therefore far outside the six-year period for contract claims and the twelve-year period for recovery of land. The court found the petition statute barred, dismissed it with costs to the Respondent, and found it unnecessary to determine the res judicata ground.

Key legal issues

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01

Whether limitation can be raised by preliminary objection

Holding

Yes; a plea of limitation is a pure point of law under the Mukisa Biscuit test

Reasoning

The court applied the Mukisa Biscuit definition, which expressly lists a plea of limitation as an example of a proper preliminary objection. The court rejected the Petitioner's submission that limitation requires judicial discretion, holding that whether the suit is time barred can be determined by examining the pleadings alone.

p. 2
02

Whether the petition is time barred

Holding

Yes; the cause of action accrued in 1983 at the latest and the petition filed in 2019 is far outside the limitation periods

Reasoning

On his own pleadings the Petitioner was sued in 1981, instructed counsel, and learnt of the auction in 1983. Section 4 of the Limitation of Actions Act prescribes six years for contract and Section 7 twelve years for recovery of land. Even the fraud proviso in Section 26 does not assist given knowledge since 1983.

p. 3

Legal principles established

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  • A plea of limitation can properly be raised by way of preliminary objection as a pure point of law

Court orders

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  1. 1.The petition is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 7
  • Limitation of Actions ActSections 4, 7, 26
  • Constitution of Kenya, 2010Articles 22, 23(3), 46, 50, 159(2), 165

Cases cited (5)

  • Christopher Orina Kenyariri –v- Salama Beach Hotel Limited & 3 Others
    (2017) eKLR
  • Sita Steel Rolling Mills Ltd –v- Jubilee Insurance Company Limited
    (2007) eKLR
  • Haron Onyancha –v- National Police Service Commission & Another
    (2017) eKLR
  • Charles Onchari Ogoti –v- Safaricom Limited & Another
    (2020) eKLR
  • Mukisa Biscuit Manufacturing CO. Ltd-v- West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Articles 22, 23, 165 of the Constitution of Kenya, 2010 (as invoked by the Petitioner)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gregory Muthiani v Standard Bank Limited [2021] KEELC 3896 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3896/eng@2021-03-16

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