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ELCDismissednot stated in extract· [2024] KEELC 282 (KLR)

Karisa & another v Dyeka & others (Environment & Land Case E082 of 2019) [2024] KEELC 282 (KLR)

Environment and Land Court
30 January 2024
MNMwangi Njoroge
1,035 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Malindi ruled that a land trespass suit filed four years after the trespass was still within the twelve-year limitation period.

What this practically means

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Executive summary

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The Defendants filed a notice of preliminary objection dated 17th November 2023 seeking dismissal of the Plaintiffs' suit on three grounds: lack of jurisdiction, the suit being time barred under Section 7 of the Limitation of Actions Act, and the suit being frivolous, vexatious and an abuse of court process. The objection was canvassed by written submissions. The Defendants argued that the suit, filed in 2019, was anchored on a certificate of title issued to them on 7th December 2005 and was therefore statute barred, relying on the Mukisa Biscuits, Lilian S and other authorities. The Plaintiffs countered that the cause of action arose in 2015 when the Defendants allegedly trespassed on the suit property, so the claim was not extinguished, and that the objection failed the Mukisa Biscuits threshold and the principles against striking out pleadings in D.T Dobie. The court framed two issues: whether the objection met the threshold of a preliminary objection, and whether the claim was time barred. Applying Section 7, which bars actions to recover land after twelve years, the court found the cause of action accrued in 2015 and the suit filed on 3rd October 2019 was within time. The preliminary objection was dismissed with costs. The court directed compliance with Order 11 of the Civil Procedure Rules and fixed a mention on 21st February 2024 for issuance of a hearing date.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

The court affirmed that the objection, going to jurisdiction, was properly founded on preliminary objection principles

Reasoning

The court applied the classic definition of a preliminary objection as a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Because the objection went into the jurisdiction of the court, it satisfied the principles, though it ultimately failed on the merits of the limitation argument.

p. 3
02

Whether the Plaintiffs' claim is time barred under Section 7 of the Limitation of Actions Act

Holding

The claim was not time barred as it was filed approximately four years after the alleged 2015 trespass

Reasoning

Section 7 bars actions to recover land after twelve years from when the right of action accrued. The plaint showed the cause of action arose in 2015 when the Defendants allegedly trespassed. The suit filed on 3rd October 2019 was within the twelve-year period, so the claim had not been extinguished and the objection lacked merit.

p. 3

Legal principles established

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  • A claim founded on trespass accruing within twelve years of filing is not extinguished under Section 7 of the Limitation of Actions Act

Court orders

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  1. 1.Notice of preliminary objection dated 17th November 2023 dismissed with costs
  2. 2.Parties to comply with Order 11 of the CPR, plaintiff within first 15 days and defendant within 15 days after expiry of plaintiff's compliance period
  3. 3.Matter to be mentioned on 21/2/2024 for issuance of a hearing date

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Civil Procedure RulesOrder 11

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co. Ltd -v- West End Distributors Ltd
    [1969] EA 698
  • Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Bosire Ongeri v Royal Media Services
    [2015] eKLR
  • Moffat Muriithi Muchai v Wanjiru Wanjohi
    Gatundu ELC No. 125 of 2017
  • D.T Dobie & Company (Kenya) Ltd -v- Muchina
    [1982] KLR
  • Charo Lewa & 3 others v Mohamed Omar Bawaly & 3 others
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court

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, "Karisa & another v Dyeka & others (Environment & Land Case E082 of 2019) [2024] KEELC 282 (KLR)", Case Analysis (2024). not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/282/eng@2024-01-30

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