Aroko & 2 others (Suing as the Personal Representatives and Administrators of the Estate of Gonda Elkana Syongoh - Deceased) v Macharia
The bottom line
#Kenya's Environment and Land Court struck out a land counterclaim filed 20 years late, confirming that filing any earlier suit does not pause the 12-year limitation clock.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was sub judice the pending Preliminary Objection
The objection failed; sub judice requires a pending suit, not a preliminary objection within the same suit.
Section 6 of the Civil Procedure Act bars trial of a matter directly and substantially in issue in a previously instituted suit between the same parties. Relying on the Supreme Court's statement of the doctrine's elements, the court held the first requirement is the existence of more than one suit over the same subject matter. A preliminary objection is not a suit, so the doctrine could not apply.
Whether the affidavit sworn by the Plaintiffs' advocate was defective
The affidavit was not defective; counsel deposed to matters within her knowledge as advocate with conduct of the matter, and the factual averments were not disputed.
Order 19 Rule 3(1) confines affidavits to facts within the deponent's knowledge, with information and belief permitted in interlocutory proceedings. Rule 9 of the Advocates (Practice) Rules prohibits advocates deposing on contentious matters but permits formal or non-contentious matters. The court found counsel's affidavit set out the history and chronology of the matter, raising issues of law and fact within her knowledge, with no error rendering it defective.
Whether the Counterclaim is res judicata HCCC No 1804 of 1999
The Counterclaim was res judicata; allegations of breach of the orders in HCCC No 1804 of 1999 belonged to that suit and ought to have been raised there.
Applying Section 7 of the Civil Procedure Act and the conjunctive elements in the IEBC v Maina Kiai decision, the court compared the two suits. HCCC No 1804 of 1999, between the Defendant and Fidelity Commercial Bank over the same suit property, was finally determined by a decree of 6th October 2004. The Counterclaim alleged illegal registration of the property in breach of orders issued in that suit; such questions of non-compliance and their consequences belonged to that court and could not be re-litigated by counterclaim.
Whether the Counterclaim is statute barred
The Counterclaim for recovery of land, brought about 20 years after the 2002 transfer, was statute barred under Sections 7 and 35 of the Limitation of Actions Act, and the mesne profits claim fell with it.
Under Section 35 a counterclaim is a separate action; recovery of land is governed by the 12-year period in Section 7. The cause of action arose in 2002, so the claim should have been filed by about 2014. The Defendant's argument that filing the suit in the lower court in 2002 stopped time was rejected on the authority of Donald Osewe Oluoch v Kenya Airways and Lilian Njeri Muranja: limitation is entirely statutory in Kenya and time does not stop running by the mere filing of a suit. No fraud-based extension under Section 26 was established.
Legal principles established
#- Sub judice under Section 6 of the Civil Procedure Act applies only where there is another pending suit, not a preliminary objection in the same suit.
- An advocate may swear an affidavit on formal or non-contentious matters but not on contested facts.
- A counterclaim is treated as a separate action for purposes of limitation and is governed by the limitation regime applicable to its subject matter.
- Filing a separate suit does not stop time running under the Limitation of Actions Act.
Court orders
#- 1.The Counterclaim in the Amended Defence and Counterclaim dated 26th October, 2020 be and is hereby struck out with costs
- 2.The Costs of this Application will be borne by the Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land dispute); application under Section 7 of the Civil Procedure Act, Order 2 Rule 15(1)(c) and (d), Order 7 Rule 3 of the Civil Procedure Rules, 2010 and Sections 4, 7 and 35 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aroko & 2 others (Suing as the Personal Representatives and Administrators of the Estate of Gonda Elkana Syongoh - Deceased) v Macharia", Case Analysis (2023). Environment & Land Case E05 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18247/eng@2023-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.