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ELCDismissedEnvironment & Land Case 38 of 2022

Ng'ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others

Environment and Land Court
30 March 2023
1,888 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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This ruling of the Environment and Land Court at Nakuru (FM Njoroge, J) determined the defendants' preliminary objection dated 25 January 2023 in a land dispute. The plaintiffs, who claim ownership of plots 1425 and 355 which they say they bought from the 1st defendant in 2004 and took possession of, sued the defendants for interference with their occupation and alleged fraud. The defendants objected that the claim was time barred under sections 4(1) and 7 of the Limitation of Actions Act, since suit should have been filed by 2016. The objection was canvassed by written submissions. The court applied the Mukisa Biscuit definition of a preliminary objection and Nitin Properties, accepting that limitation is a point of law touching jurisdiction. However, it held that the pleadings do not clearly show when the cause of action arose, and the plaintiffs pleaded fraud, engaging section 26 of the Limitation of Actions Act on discovery of fraud - matters requiring viva voce evidence. Relying on Sichuan Huashi, Oruta v Nyamato and Divecon, the court held that limitation should be framed as a trial issue and decided on evidence, not summarily. The preliminary objection was dismissed with costs on 30 March 2023.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiffs' case is time barred and offends the mandatory provisions of sections 4(1) and 7 of the Limitation of Actions Act

Key legal issues

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01

Whether the preliminary objection on limitation was a pure point of law suitable for summary determination

Holding

The objection was dismissed; although limitation is a point of law, the pleadings do not show when the cause of action arose, and the plaintiffs allege fraud, so the issue requires evidence at trial.

Reasoning

The court adopted the Mukisa Biscuit definition of a preliminary objection and accepted that limitation touches jurisdiction. However, it found the pleadings unclear as to when the cause of action accrued, and the plaintiffs pleaded fraud, engaging section 26 of the Limitation of Actions Act on discovery of fraud. Following Sichuan Huashi, Oruta and Divecon, limitation should be framed as an issue for trial and decided on evidence, not struck out summarily.

p. 4

Legal principles established

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  • A preliminary objection cannot be sustained where the issue raised requires ascertainment of facts or evidence at trial
  • The defence of limitation of time is a matter for determination at the trial on evidence, not summarily by preliminary objection

Court orders

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  1. 1.The defendants' preliminary objection dated 25/01/2023 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); not expressly stated in the ruling

Relief refused

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Defendants' preliminary objection on limitation

Whether the suit is time barred can only be determined at the hearing upon each party adducing evidence

p. 4

Costs

The defendants' preliminary objection is dismissed with costs (costs to the plaintiffs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is my view therefore that the issue of whether the suit is time barred under the Limitation of Actions Act can only be determined at the hearing upon each party adducing evidence.
p. 4limitation not determinable by preliminary objection
Consequently, the defendants' preliminary objection lacks merit and is hereby dismissed with costs.
p. 4disposition
It is my view that it is not clear from the pleadings as to when the cause of action arose.
p. 4cause of action not ascertainable from pleadings
Section 26 of the Limitation of Actions Act also provides that the period of limitation does not begin to run until the plaintiff has discovered the fraud or mistake or when with reasonable diligence fraud could have been discovered.
p. 3fraud discovery and extension of limitation period

Issues in the judgment

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minor

Plaintiffs' submissions dated 31/12/2023 but filed 03/02/2023, before the objection date of 25/01/2023 - dates inconsistent

minor

Paragraph numbering restarts mid-ruling (paragraph 14 appears twice)

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, "Ng'ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others", Case Analysis (2023). Environment & Land Case 38 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16692/eng@2023-03-30

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