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ELCDismissedNot stated in the ruling· [2023] KEELC 748 (KLR)

Onsare v Acco Limited & another (Environment & Land Miscellaneous Case E030 of 2022) [2023] KEELC 748 (KLR)

Environment and Land Court
9 February 2023
EWE. K. Wabwoto
1,180 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 will hear land lease disputes, and a contract claim starts running only when a breach actually happens.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi, delivered virtually on February 9, 2023 by E. K. Wabwoto J, determined two preliminary objections raised against the Plaintiff's suit concerning lease agreements over land parcel LR No 209/4311. The 1st Defendant objected that the Court's jurisdiction under Article 162 of the Constitution, Section 13 of the ELC Act and Section 150 of the Land Act does not extend to accounting questions arising from a contractual relationship. The 2nd Defendant objected that the suit was time barred under Section 4 of the Limitation of Actions Act, contending the cause of action arose on October 22, 2015 when a notice of termination was issued, and sought striking out with costs. The Plaintiff opposed, submitting the Court has jurisdiction over land use and occupation matters. The Court applied the Mukisa Biscuits principle that a preliminary objection must be a pure point of law. On jurisdiction, it found the parties' admission of lease agreements over the suit property settled the Court's jurisdiction under Article 162(2)(b) and Section 13(2)(e). On limitation, adopting B Mathayo Obonyo, it held that a cause of action in contract accrues upon breach, not expiry of the contract period, and found the cause accrued in early February 2016 when the extended notice term lapsed, rendering the suit within time. Both preliminary objections were dismissed with no orders as to costs.

Key legal issues

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01

Whether the ELC has jurisdiction over disputes on accounting questions arising from lease agreements over land

Holding

The Court has jurisdiction because the dispute relates to land, the parties admitting lease agreements over LR No 209/4311

Reasoning

Article 162(2)(b) of the Constitution and Section 13(2)(e) of the ELC Act extend the Court's jurisdiction to any other dispute relating to environment and land. The admission by the parties of lease agreements over LR No 209/4311 settles jurisdiction and extinguishes the claim that the Plaintiff has no interest in land.

p. 3
02

Whether the suit is time barred under Section 4 of the Limitation of Actions Act

Holding

The suit is not time barred; the cause of action accrued in early February 2016 upon breach, not on the October 22, 2015 notice of termination

Reasoning

Relying on B Mathayo Obonyo v South Nyanza Sugar Company Ltd, the Court held that the cause of action accrues when the right to sue arises on breach of contractual obligations, not at the end of the contract period. The cause of action here accrued when the extended term on the notice lapsed and the notice was enforced, in early February 2016, making the suit filed in 2022 within the six-year limitation period.

p. 3

Legal principles established

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  • A preliminary objection must be raised on a pure point of law, assumed on the correctness of all facts pleaded by the other side
  • A cause of action founded on contract accrues upon breach, not upon expiry of the contract period

Court orders

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  1. 1.The preliminary objections dated June 6, 2022 and August 2, 2022 are dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13(2)(e)
  • Land ActSection 150; Sections 38 and 2
  • Limitation of Actions ActSections 4 and 4(1)
  • Civil Procedure ActSection 96

Cases cited (4)

  • Mukhisa Biscuits Manufacturing Co. Ltd v. West-End Distributors Limited
    (1969) E.A 696
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Gathoni v Kenya co-operative Cremaries Ltd
    (1982) KLR 104
  • B Mathayo Obonyo v South Nyanza Sugar Company Ltd
Jurisdiction invoked
Article 162 of the Constitution; Section 13 of the Environment and Land Court Act

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, "Onsare v Acco Limited & another (Environment & Land Miscellaneous Case E030 of 2022) [2023] KEELC 748 (KLR)", Case Analysis (2023). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/748/eng@2023-02-09

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