Ng'ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the preliminary objection on limitation was a pure point of law suitable for summary determination
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.
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.
Legal principles established
#- 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
#- 1.The defendants' preliminary objection dated 25/01/2023 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Defendants' preliminary objection on limitation
Whether the suit is time barred can only be determined at the hearing upon each party adducing evidence
Costs
The defendants' preliminary objection is dismissed with costs (costs to the plaintiffs)
Quotable passages
#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.
Consequently, the defendants' preliminary objection lacks merit and is hereby dismissed with costs.
It is my view that it is not clear from the pleadings as to when the cause of action arose.
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.
Issues in the judgment
#Plaintiffs' submissions dated 31/12/2023 but filed 03/02/2023, before the objection date of 25/01/2023 - dates inconsistent
Paragraph numbering restarts mid-ruling (paragraph 14 appears twice)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.