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ELCDismissedMisc. Application Notice of Motion dated 20th April 2021 (ELC, Machakos)· [2022] KEELC 782 (KLR)

Sunit Singh Varma & another v Uniken Limited & 2 others [2022] KEELC 782 (KLR)

Environment and Land Court
16 March 2022
1,993 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a preliminary objection, confirming that objections requiring evidence or based on disputed facts cannot end a case.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Machakos, delivered on 16 March 2022 by A. Nyukuri J, determined a Notice of Preliminary Objection dated 5 October 2021 by which the Respondents opposed the Applicants' Notice of Motion dated 20 April 2021, a suit concerning ownership interests in Land Reference 11895/1. The Respondents advanced two grounds: that the suit was time barred under Sections 7 and 9 of the Limitation of Actions Act, the cause of action having allegedly accrued in 1997; and that the suit was sub judice under Section 6 of the Civil Procedure Act owing to two pending Machakos High Court matters, Misc. 234 of 2021 (Sunit Singh Varma & 3 Others vs Athi Stores Limited) and P&A 1254 of 2017 (Estate of Madan-Mohan Singh Varma). The court framed two issues: whether the objection raised a valid preliminary objection, and whether it was merited. Applying Mukisa Biscuit and Oraro vs Mbaja, the court held that limitation is a pure point of law validly raised as a preliminary objection, but the pleadings did not show that the cause of action accrued in 1997, so the suit was not time barred. The sub judice plea, by contrast, required evidence comparing the pleadings in the earlier suits and rested on disputed facts; it could not be sustained as a preliminary objection and ought to be raised by Notice of Motion. The preliminary objection was dismissed with costs. The ruling does not decide the merits of the underlying application.

Key legal issues

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01

Whether the limitation ground (Sections 7 and 9, Limitation of Actions Act) was a validly raised preliminary objection

Holding

Limitation is a pure point of law and validly raised as a preliminary objection, but on the pleadings the suit was not shown to be time barred.

Reasoning

The court accepted that a plea of limitation is a point of law and thus competent as a preliminary objection. However, the plea had to be established from the pleadings themselves. The Respondents asserted the cause of action accrued in 1997, but neither the Notice of Motion nor the Supporting Affidavit disclosed that date of accrual, and there was no replying affidavit. The limitation plea therefore failed on its own materials.

p. 3
02

Whether the sub judice ground was a valid preliminary objection

Holding

It was not; sub judice depends on comparing pleadings in the earlier suits, involves disputed facts, and must be raised by Notice of Motion.

Reasoning

Section 6 of the Civil Procedure Act requires that the matter in issue be directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title. To establish this, the pleadings in the prior suits must be exhibited, making the objection evidence-dependent. The Applicants disputed identity of parties and issues, so the objection rested on disputed facts and was fatally defective as a preliminary objection.

p. 3

Legal principles established

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  • A valid preliminary objection must be founded on pure points of law and undisputed facts; any objection requiring evidence or resting on disputed facts is misconceived.
  • A plea of sub judice under Section 6 of the Civil Procedure Act, where the facts are disputed, cannot be raised as a preliminary objection but must be raised by Notice of Motion.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 5th October 2021 is dismissed.
  2. 2.The Respondents to pay the costs of the preliminary objection.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9
  • Civil Procedure ActSection 6

Cases cited (11)

  • Mukisa Biscuit Manufacturing Co. Limited vs West End Distributors Ltd
    [1969] E.A 696
  • Oraro vs Mbaja
    [2005] KLR 141
  • Muturi Investments Ltd vs NBK
    [2006] eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & Another
    [2017] eKLR
  • Barclays Bank of Kenya Ltd vs Elizabeth Agidza & 2 Others
    [2012] eKLR
  • Thiba Min Hydro Co. Ltd vs Josphat Karu Ndwiga
    [2013] eKLR
  • Cecilio Murango Mwenda & 6 Others vs Isaac Kimathi Ikunga
  • County Government of Migori vs INB Management IT Consulting Limited
    [2019] eKLR
  • John Musakali vs Speaker County of Bungoma & 4 Others
    [2015] eKLR
  • Kenya National Commission on Human Rights vs Attorney General, Independent Electoral & Boundaries Commission & 16 Others
  • Republic vs Paul Kihara Kariuki, Attorney General & 2 Others Exparte Law Society of Kenya
    [2020] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the ELC Act (court seized of land dispute; limitation under Limitation of Actions Act raised against it)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Sunit Singh Varma & another v Uniken Limited & 2 others [2022] KEELC 782 (KLR)", Case Analysis (2022). Misc. Application Notice of Motion dated 20th April 2021 (ELC, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/782/eng@2022-03-16

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