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ELCDismissedEnvironment & Land Case 99 of 2022· [2023] KEELC 18479 (KLR)

Mayfair Establishments Limited v Taib (Sued as the Legal Representative of the Estate of Sheikh Ali Taib Bajaber - Deceased) & 3 others

Environment and Land Court of Kenya
30 May 2023
LNLL Naikuni
2,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a land suit on limitation grounds because deciding when time started running requires evidence at a full trial.

What this practically means

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Executive summary

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The 1st Defendant, sued as legal representative of the estate of Sheikh Ali Taib Bajaber, raised a preliminary objection dated 7th October 2022 seeking dismissal of the plaintiff's suit on the ground that it was filed outside the twelve-year period prescribed by Section 7 of the Limitation of Actions Act, Cap. 22. The 1st Defendant, through Messrs. Khalid Salim & Company Advocates, relied on Mukisa Biscuit and related authorities, arguing the plaintiff knew of the subsisting lease before purchasing the suit property in 2010 and slept on its rights for over twelve years. The plaintiff, through Messrs. Asige Keverenge & Anyanzwa Advocates, opposed the objection for non-compliance with court directions and for lack of evidential support, contending the 1st Defendant had filed no defence and no affidavit evidence. Justice LL Naikuni framed three issues: whether the objection met the legal threshold, whether the suit was time-barred, and costs. The court applied the Mukisa Biscuit test and held that determining when the cause of action accrued - whether upon the 2002 transfer between the defendants or upon the plaintiff's registration as owner on 11th May 2010 - involved factual questions requiring evidence at full trial. The 1st Defendant bore the burden of proving the limitation bar and had produced no evidence. The objection was disallowed; the defendants were ordered to comply with Orders 6, 7 and 11 of the Civil Procedure Rules by filing defences and documents; the matter was set down for mention on 6th July 2023 and hearing on 5th October 2023, to be concluded within 180 days; and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the objection met the Mukisa Biscuit threshold of a pure point of law

Holding

The objection, though framed on limitation, required factual interrogation and therefore failed the threshold

Reasoning

The court applied the Mukisa Biscuit definition of a preliminary objection. It found that determining when the plaintiff's cause of action accrued - whether on the 2002 transfer or the 2010 registration - involved factual questions requiring evidence at full trial, so the objection was not purely one of law.

p. 4
02

Whether the suit was time-barred under Section 7 of the Limitation of Actions Act

Holding

The court could not determine accrual of the cause of action on a preliminary objection; the 1st Defendant bore the burden of proving the bar

Reasoning

Although the plaint was filed about twelve years and three months after the plaintiff's claimed registration in 2010, the court held that establishing when the right of action accrued required empirical documentary evidence, and the 1st Defendant had produced no evidence that the suit was barred by Section 7.

p. 5
03

Costs of the objection

Holding

Although the objection failed, each party was to bear its own costs given the ongoing trial

Reasoning

Applying Section 27(1) of the Civil Procedure Act that costs follow the events, the court nonetheless exercised its discretion to order each party to bear its own costs because the matter was still proceeding to full trial.

p. 5

Legal principles established

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  • A preliminary objection must be a pure point of law; where it requires interrogation of facts it fails
  • A plea of limitation is a proper preliminary objection capable of disposing of a suit

Court orders

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  1. 1.The Notice of Preliminary Objection dated 7th October 2022 be and is hereby disallowed.
  2. 2.The Defendants are ordered to fully comply with the provision of Orders 6, 7 and 11 of the Civil Procedure Rules, 2010 by filing their Defences, List of Documents and statements.
  3. 3.The matter to be heard and disposed of within the next One Hundred and Eighty (180) days from the date of delivery of the Ruling; hearing on 5th October 2023 and mention on 6th July 2023 for compliance and Pre-Trial Conference in accordance with Order 11 of the Civil Procedure Rules, 2010.
  4. 4.Each party to bear their own costs.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Civil Procedure ActSection 27(1)
  • Civil Procedure Rules, 2010Orders 6, 7 and 11
  • Constitution of Kenya, 2010relevant provisions

Cases cited (8)

  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited (1969) EA 696
    (1969) EA 696

    Definition and threshold of a preliminary objection as a pure point of law; plea of limitation as an example

  • Mehta v Shah (1965) E.A
    (1965) E.A

    Object of limitation enactments - preventing stale claims and protecting defendants

  • Iga v Makerere University (1972) EA
    (1972) EA

    A plaint barred by limitation is barred by law; limitation bars the remedy, not the suit itself

  • Joseph Mungai Wanene v Housing Finance Company of Kenya Limited (2017) eKLR
    (2017) eKLR

    Rationale for limitation periods; limitation goes to jurisdiction

  • Gathoni v Kenya Co-operative Creameries Limited (1982) KLR 104
    (1982) KLR 104

    Limitation law protects defendants against unreasonable delay in bringing suits

  • South Nyanza Sugar Company Limited v Joshua Aloo Aloo [2021] eKLR
    [2021] eKLR

    In contract, a cause of action arises at the time of breach

  • Jasbir Rai Singh v Tarchalans, (2014) eKLR
    (2014) eKLR

    Costs follow the events under Section 27(1) of the Civil Procedure Act

  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited, (2014) eKLR
    (2014) eKLR

    Costs follow the events under Section 27(1) of the Civil Procedure Act

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution of Kenya, 2010 (suit concerning land); ruling on a preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mayfair Establishments Limited v Taib (Sued as the Legal Representative of the Estate of Sheikh Ali Taib Bajaber - Deceased) & 3 others", Case Analysis (2023). Environment & Land Case 99 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18479/eng@2023-05-30

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