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ELCDismissedNot stated in the judgment· [2022] KEELC 2005 (KLR)

Zacharia Mburu Chege v Naku Dwellers Ltd & another [2022] KEELC 2005 (KLR)

Environment and Land Court
25 January 2022
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru dismissed a claim that an old land-sale lawsuit was filed too late, because when the breach actually happened must be decided at trial, not beforehand.

What this practically means

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Executive summary

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The 1st Defendant raised a preliminary objection dated 10/11/2021 seeking striking out of the Plaintiff's suit as statutorily time barred under section 4(1)(a) of the Limitation of Actions Act (Cap 22). The claim rests on an agreement of 17/3/2005 for the sale of proposed subdivisions of Nakuru Municipality Block 7/7, procured by the 2nd Defendant as alleged agent of the 1st Defendant, with relief of specific performance, general damages for breach, and an alternative claim for breach of warranty. The defendants argued that time began running on the agreement, expiring by 16/9/2011, and relied on Mukisa Biscuits, Hassan Nyanje Charo, Martha Karwirwa Anthony and Joseph Odira Ombok. The plaintiff countered that the cause of action accrued on breach, which he learnt of only in October 2014 when the 1st Defendant threatened to sell the land to a third party, the suit having been filed on 27/10/2014. Applying the Mukisa Biscuits principle, Mwangi Njoroge J held that a preliminary objection must be a pure point of law on assumed pleaded facts. The decisive issue here was the date of breach, which the pleadings do not fix: the 1st Defendant's defence admits disposal of its interest on 12/3/2015, after suit was filed, and the plaintiff's supporting documents could only be tested at the hearing. The objection was therefore incapable of terminating the suit and was dismissed with costs to the plaintiff, borne by the defendants in equal shares, with the main suit listed for mention on 2/2/2022 for fixing a hearing date.

Key legal issues

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01

Competence of a limitation-based preliminary objection where the date of breach is disputed

Holding

The objection fails because it is not a pure point of law; the decisive fact (the date of breach giving rise to the cause of action) cannot be ascertained from the pleadings

Reasoning

The cause of action in contract accrues on breach, not on the date of the agreement. The pleadings do not state a specific date of breach: the plaintiff pleaded knowledge of an intended sale to a third party in October 2014, and the 1st defendant's defence admits disposal of interest on 12/3/2015, after suit was filed. Since a preliminary objection must assume pleaded facts correct and cannot require ascertainment of facts, the limitation plea cannot be resolved in limine and must await the hearing.

p. 2
02

Scope of the preliminary objection jurisdiction under Mukisa Biscuits

Holding

The court must confine itself to the pleadings; documentary evidence relied on by the plaintiff to establish the date of breach is irrelevant at this stage

Reasoning

Applying the locus classicus definition, the court held that it may not look outside the pleadings when deciding a preliminary objection. The plaintiff's documents evidencing threats to sell to a third party, and the 2nd defendant's letter of 13/2/2014 terminating the agency, could only be adduced and their probative value tested at the hearing. Their only relevance was to confirm that the pleadings themselves lack material to sustain the objection.

p. 2

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; it cannot be raised if any fact has to be ascertained or if the exercise of judicial discretion is sought
  • In determining a preliminary objection the court is confined to the contents of the pleadings and may not go outside them, since such facts can only be tested at the hearing
  • Where the date of breach is not ascertainable from the pleadings, a limitation-based preliminary objection premised on that date cannot be upheld

Court orders

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  1. 1.The preliminary objection dated 10/11/2021 is dismissed
  2. 2.Costs of the preliminary objection to be borne by the defendants in equal shares
  3. 3.The main suit to be listed for mention for fixing a hearing date on 2/2/2022
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; no specific constitutional or statutory provision cited as the basis of jurisdiction

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, "Zacharia Mburu Chege v Naku Dwellers Ltd & another [2022] KEELC 2005 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2005/eng@2022-01-25

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