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ELCStruck OutEnvironment & Land Case 104 of 2016 & 35 of 2007 (Consolidated)· [2023] KEELC 17360 (KLR)

Highland Plaza Limited v Ondieki & 6 others

Environment and Land Court
2 May 2023
13,339 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~53 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a 16-year-old land dispute because the fraud claim was filed years too late, and the plaintiff must pay the defendants' costs.

What this practically means

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Executive summary

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In this ruling, the Environment and Land Court at Mombasa (Naikuni J) determined a notice of motion by the 1st and 2nd Defendants under Order 2 Rule 15(1)(d) seeking striking out of the Plaintiff's Amended Plaint dated 23rd May 2022, together with a preliminary objection by the 7th Defendant, Safaricom Limited, contending that the amended pleading introduced a fraud claim time-barred under Sections 4(2) and 26 of the Limitation of Actions Act and thereby ousted the court's jurisdiction. The Plaintiff, Highland Plaza Limited, argued its claim was one for recovery of land governed by the 12-year period in Section 7, that time only ran from discovery of the fraud (which it placed in 2016 when the fraudulent sub-divisions surfaced), and that the extension and substituted service of summons were valid. The court framed three issues: the threshold and merit of the preliminary objection, the merit of the striking-out application, and costs. Applying Mukisa Biscuit, it held the limitation plea was a pure point of law arising from the Amended Plaint's own averment that the plaintiff became aware of competing claims in 2004; the three-year period therefore expired in 2007 and the fraud claim introduced by amendment in 2022 was statute-barred, limitation being a matter going to jurisdiction. The preliminary objection was allowed in its entirety. The court also allowed the 1st and 2nd Defendants' application, struck out and dismissed the Amended Plaint against all seven Defendants, closed the file, extended the orders mutatis mutandis to the consolidated ELC No. 35 of 2007, and awarded costs of the application and objection to the 1st, 2nd and 7th Defendants.

Key legal issues

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01

Whether the preliminary objection on limitation met the Mukisa Biscuit threshold

Holding

It did; limitation is a pure point of law arising from the pleadings and the objection was allowed in its entirety.

Reasoning

Applying Mukisa Biscuit, the court found the plea of limitation arose directly from the Amended Plaint's own averment that the plaintiff became aware of the competing lease in 2004. The fraud claim introduced by amendment in 2022 was therefore statute-barred, and limitation goes to jurisdiction, so the court had to down its tools.

p. 19
02

When time began to run for the fraud claim

Holding

The fraud was discovered in 2004 per the plaintiff's own pleading; three years expired in 2007, so the 2022 amendment introducing fraud was time-barred.

Reasoning

Paragraph 4 of the Amended Plaint pleaded that in 2004, while registering its lease, the plaintiff became aware of others attempting to register a lease over the same parcel. Under Section 26 of the Limitation of Actions Act, time runs from discovery of fraud; the proceedings incorporating fraud were filed in 2022, well beyond the three-year period.

p. 19
03

Whether the suit should be struck out under Order 2 Rule 15(1)(d) as an abuse of process

Holding

The Notice of Motion was found meritorious and allowed; the suit was struck out and dismissed.

Reasoning

Although the court recited the settled principle that striking out must be exercised sparingly and in plain cases, it held that the time-barred fraud claim could not be sustained, that the preliminary objection by itself concluded the case, and that justice and fairness required terminating the suit at the earliest juncture.

p. 23
04

Whether the suit was incompetent for lack of valid summons to enter appearance

Holding

Not separately determined; the suit was terminated on the limitation ground, though the applicants had argued the ex parte extension of expired summons was a nullity.

Reasoning

The 1st and 2nd Defendants argued summons issued 16th May 2016 expired and the 23rd July 2019 ex parte extension extended nothing, relying on Udaykumar Chandulal Rajani. The plaintiff relied on Letshego Kenya Ltd and Order 50 Rule 6. The court did not make an express finding on this limb, resting its decision on limitation.

p. 23

Legal principles established

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  • Limitation is substantive law and cannot be circumvented by the overriding objective or Article 159 of the Constitution
  • Where an action is based on fraud, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud
  • A preliminary objection on limitation is a pure point of law that may dispose of the suit
  • Costs follow the event

Court orders

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  1. 1.The Notice of Preliminary Objection dated 24th March, 2023 allowed in its entirety with costs
  2. 2.The Notice of Motion application dated 9th December, 2022 by the 1st and 2nd Defendants found meritorious and allowed with costs
  3. 3.The suit instituted through the Amended Plaint dated 23rd May, 2022 against all Defendants struck out and dismissed as a consequence
  4. 4.An order that the suit is finalized and the file closed
  5. 5.The orders to apply mutatis mutandis to ELC No. 35 of 2007 which was consolidated with this file
  6. 6.Costs of the application and the objection borne by the Plaintiff and awarded to the 1st, 2nd and 7th Defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(d)
  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Limitation of Actions ActSections 4(2), 7, 17, 26, 27
  • Constitution of Kenya, 2010Article 159(1) and (2)
  • Public Authorities Limitation ActSections 3(1) and (2)
  • Government Proceedings ActSection 13A

Cases cited (40)

  • Equitorial Bank Limited v Jodam Engineering Works Limited & 2 Others
    (2014) eKLR

    Striking out of pleadings should be done sparingly, in very clear and plain cases

  • Diamond Trust Bank (K) Ltd v Martin Ngombo & 8 Others
    [2005] eKLR

    Summary procedure gives quick remedy against sham defences

  • Spin Knit Dairy Limited & Mwaniki Anderson
    (2019) eKLR

    A suit filed out of the statutory period ousts the court's jurisdiction; jurisdiction is everything

  • Dhanesvar V Mehta v Manilal M Shah
    [1965] EA 321

    Object of limitation enactments: prevent stale claims and protect defendants who lost evidence

  • Iga v Makerere University
    [1972] EA 62

    A plaint barred by limitation is barred by law; court cannot grant the remedy

  • Oriental Commercial Bank Limited v Central Bank of Kenya
    (2015) eKLR

    Justice delayed is justice denied; discretionary powers should not be exercised so as to defeat limitation

  • Kothari v Qureshi
    [1967] E.A. 564

    Plaintiff bound to prosecute claim without undue delay; laches and limitation

  • Auto Garage & Others v Motokov (No.3)
    [1971] 1 EA 514

    Cannot amend a nullity; amendment should not defeat limitation

  • Mushimiyimana Aimable v Jonathan Leakey Limited & Another
    (2009) eKLR

    Relation back doctrine does not apply to added parties; limitation defence open to them

  • Reuben Ashikoli Ashikanga v Norman Lidigu & Pan African Paper Mills Ltd
    Civil Suit No. 5130 of 1989

    Amendment adding a defendant speaks from date of leave; cannot overcome section 4(2) limitation

  • Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others
    (2015) eKLR

    Limitation runs from actual knowledge of third party claims; estoppel cannot enlarge limitation period

  • Abubakar Zain Ahmed v Premier Savings & Finance Limited & 4 Others
    (2007) eKLR

    Tort claims within plaintiff's knowledge brought outside limitation are time barred; hopeless claims should not be sustained

  • Udaykumar Chandulal Rajani & 3 Others v Charles Thaithi
    (1991) eKLR

    Expired summons cannot be extended; service ineffective and suit a nullity

  • Mukisa Biscuit Manufacturing Limited v West End Distributors
    [1969] EA 696

    Definition and threshold of a preliminary objection - a pure point of law

  • Sohanlaldurgadass Rajput & Another v Divisional Integrated Development Programmes Co Ltd
    [2021] eKLR

    Preliminary objection points of law must sprout from pleadings; limitation goes to jurisdiction

  • Bosire Ongero v Royal Media Services
    [2015] eKLR

    Question of limitation touches on jurisdiction of the court

  • Edward Moonge Lengusuranga v James Lanaryara & Another
    [2019] eKLR

    Limitation is substantive law; overriding objective cannot disregard it; court must down tools

  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Locus classicus on jurisdiction - jurisdiction is everything; court downs tools without it

  • Kenya Airways Limited v Classical Travel and Tours Ltd
    (2003) LLR 2704 (CCK)

    Definitions of scandalous, frivolous, embarrassing pleadings and abuse of process

  • G.B.M Kariuki v Nation Media Group Limited & 3 Others
    [2012] eKLR

    Striking out jurisdiction must be exercised sparingly, in clearest of cases, without mini-trial

  • Knowles v Roberts
    (1888) 38 Ch D 263

    Pleadings tending to prejudice, embarrass or delay fair trial exceed a party's right

  • DT Dobbie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another
    C.A 37 of 1980, eKLR

    No suit summarily dismissed unless so weak as to be beyond redemption and incurable by amendment

  • Co-Operative Merchant Bank Ltd v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999

    Striking out is draconian, only in plain cases; triable issues must go to trial

  • Silvester K. Kaitany v Nyayo Tea Zones Development Corporation & another
    [2020] eKLR

    Recovery of land claim governed by 12-year limitation; discovery of fraud is a matter for trial

  • Justus Tureti Obara v Peter Koipeitai
    [2014] eKLR

    Recovery of land claim is 12 years under section 7; when fraud discovered is ascertained at trial

  • Eunice Nduta & another v Lilian Chemutai & 2 others
    [2021] eKLR

    Sections 22 and 26 empower a party to file suit despite expiry of limitation period

  • Nzoia Sugar Co. Ltd v Kenya Ports Authority
    [1990] eKLR

    Sections 22 and 26 empower filing suit despite limitation expiry; no application for leave needed

  • Delilah Ondari v Francis Ondieki Atandi
    [2022] eKLR

    Court should not hold a mini-trial on when fraud was discovered in a preliminary objection

  • Letshego Kenya Limited v Timothy Kimenyi Mungathia
    [2021] eKLR

    Court has discretion to extend validity of summons even after expiry

  • Kenya Commercial Bank Limited v Ann Kajuju Charles
    [2012] eKLR

    Order 5 Rule 2(2) does not specify when extension of summons may be sought

  • Jasbir Rai Singh Rai v Tarchalon Singh
    (2014) eKLR

    Costs follow the event

  • Kenya Sugar Board v Ndungu Gathini
    (2013) eKLR

    Costs follow the event

  • RoseMary Wambui Munene v Ihururu Dairy Co operatives Societies Limited
    (2014) eKLR

    Costs follow the event; compensating the successful party

  • Day v William Hill (Park Lane) Ltd
    1949 All ER 219 CA

    Clearly unsustainable cases are frivolous

  • Dawkins v Prince Edward of Saxe-Weimar
    (1876) QBD 499

    Proceeding wasting the time of the court is frivolous

  • Wills v Earl Beauchamp
    1886 11 PD 59

    Action described as hopeless and would lead to no good result

  • Tarmal Industries Limited v Commissioner of Customs & Excise
    (1968) EA 471

    Estoppel cannot alter statutory limitation provisions

  • Marimite Electric Co. Limited v General Dairies Ltd
    [1937] 1 All ER 748

    Estoppel cannot enlarge limitation period

  • Henry Muthee Kathurima v Commissioner of Lands & Another
    [2015] eKLR, Nyeri Civil Appeal No. 8 of 2014

    Estoppel cannot override express statutory procedures

  • Otieno v Omoro
    Civil Suit No. 52 of 1976

    Limitation period calculated to institution; amendment order treated as fresh suit

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act; application under Order 2 Rule 15(1)(d) Civil Procedure Rules, 2010 and Sections 1A and 1B Civil Procedure Act (Cap. 21)

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, "Highland Plaza Limited v Ondieki & 6 others", Case Analysis (2023). Environment & Land Case 104 of 2016 & 35 of 2007 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17360/eng@2023-05-02

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