Gilbi Construction Company Ltd & another v Wrigley Company (East Africa) Ltd; Civicon Limited (Third party) (Environment & Land Case 36 of 2020) [2023] KEELC 438 (KLR)
The bottom line
#Kenya's Environment and Land Court struck down a limitation-based preliminary objection because it relied on disputed facts, meaning such objections must rest on agreed facts only.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant's limitation-based preliminary objection was a proper preliminary objection on a pure point of law
It was not, because the date the cause of action arose and the alleged acknowledgment/promise to repair were contested factual matters.
Applying Mukisa Biscuits and Oraro v Mbaja, the court held that a preliminary objection must rest on uncontested facts. Here the date of accrual of the tortious cause of action, the alleged recurring nature of the damage, and the alleged emails/undertaking of December 11, 2015 conceding liability were all disputed. The defendant could not select some paragraphs of the plaint and ignore others; the factual disputes could only be resolved at the hearing.
Whether the suit is statute-barred under section 4(2) of the Limitation of Actions Act
The court did not reach the merits; the objection failed because it could not be determined on pure law at the preliminary stage.
Although section 4(2) requires tort actions to be filed within three years of accrual, the court found the accrual date contested - plaintiffs alleged continuing wrong from 2015 to the collapse of the wall in 2020, coupled with an alleged concession of liability and promise to repair. Determining accrual required evidence, so the limitation question was not decided.
Legal principles established
#- A preliminary objection must be anchored on undisputed facts; where facts are contested it is not a proper preliminary objection.
Court orders
#- 1.The preliminary objection dated May 16, 2022 is dismissed
- 2.Costs of the preliminary objection awarded to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction under section 4(2) of the Limitation of Actions Act Cap 22 raised via preliminary objection; Article 159 of the Constitution cited on ADR
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilbi Construction Company Ltd & another v Wrigley Company (East Africa) Ltd; Civicon Limited (Third party) (Environment & Land Case 36 of 2020) [2023] KEELC 438 (KLR)", Case Analysis (2023). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/438/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.