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ELCDismissedEnvironment and Land Case (not specified in excerpt)· [2024] KEELC 4085 (KLR)

Kubai Investment Limited v Sian Enterprises Limited & 5 others (Environment & Land Case 53 of 2019) [2024] KEELC 4085 (KLR)

Environment and Land Court
22 May 2024
MOM. A. Odeny
1,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that time-barred arguments can't end a land suit early — limitation must be proven with evidence at trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, Judge) dealt with two notices of preliminary objection dated 8th August 2019 and 27th April 2023 filed by the 2nd and 4th defendants respectively. Both objections asserted that the plaintiff's suit, filed in 2019, was statute barred under sections 7, 9, 4(2) and 26(1) of the Limitation of Actions Act, the cause of action having arisen in 1982, and that the suit was therefore an abuse of process over which the court lacked jurisdiction. The 2nd and 4th defendants, supported by the 1st defendant's submissions, relied principally on the Mukisa Biscuit definition of a preliminary objection and authorities on limitation. The court framed one issue: whether the suit should be struck out as statute barred. Applying Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi, Oruta & Another v Nyamato and Divecon Ltd v Shirinkhanu S. Samani, the court held that the defence of limitation is a matter for determination at the trial on evidence and cannot be disposed of summarily as a preliminary objection. The plea of fraud and the alleged 2016 discovery of that fraud raised contested questions of fact requiring evidence at trial. The court therefore dismissed both preliminary objections as lacking merit and awarded costs of the objections to the plaintiff. The substantive suit remains pending for trial.

Key legal issues

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01

Whether limitation can be raised as a preliminary objection

Holding

No; limitation is a matter for trial on evidence, particularly where fraud and dates of discovery are contested

Reasoning

Relying on Sichuan Huashi Enterprises Corp. Ltd v Micheal Misiko Muhindi, Oruta & Another v Nyamato and Divecon Ltd v Shirinkhanu S. Samani, the court held that limitation should be framed as an issue at trial and decided on evidence. The plea of fraud and when it was discovered raised factual questions requiring proof, so it could not be resolved summarily at the preliminary stage.

p. 4
02

Nature of a preliminary objection

Holding

A preliminary objection is a pure point of law argued on the assumption that the facts pleaded by the other side are correct

Reasoning

The court adopted the classic statement in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Oraro v Mbaja, reiterating that an objection blurring with contested factual details is not a true preliminary objection. Since the limitation and fraud issues required factual inquiry, the objections were incompetent in that form.

p. 3

Legal principles established

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  • The defence of limitation of time is a matter for determination at the trial and cannot be dealt with as a preliminary objection
  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained

Court orders

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  1. 1.The 2nd and 4th defendants' preliminary objections dated 8th August 2019 and 27th April 2023 respectively are dismissed with costs to the plaintiff

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9
  • Limitation of Actions ActSection 26(1)
  • Limitation of Actions ActSection 4(2)
  • Civil Procedure ActOrder 21 rule 1

Cases cited (16)

  • Hassan Ali Joho & another v Suleiman Said Shabal & 2 Others
    [2014] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Gathoni v Kenya Co-operative Creameries Ltd
    [1982] eKLR / [1982] KLR 104
  • Edward Moonge Lengusuranga v James Lanaiyara & another
    [2019] eKLR
  • Stephen Kareri Mwangi (Suing as the attorney (donee) of Loise Wangima) v Egerton University
    [2013] eKLR
  • Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR
  • County Council of Nandi v Ezekiel Kibet Rutto & 6 Others
    [2013] eKLR
  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • JN & 5 Others v Board of Management of St. G School Nairobi and another
    [2017] eKLR
  • Dickson Ngige Ngugi v Consolidated Bank Limited (Formerly Jimba Credit Corporation Limited) & another
    [2020] eKLR
  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Ushago Diani Investment Limited v Abdulwahab
    (Environment & Land Case 12 of 2023) [2023] KEELC 20213 (KLR) (27 September 2023)
  • Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi
    [2019] eKLR
  • Oruta & Another v Nyamato
    [1998] KLR 590
  • Divecon Ltd v Shirinkhanu S. Samani
    Civil Appeal No. 142 of 1997
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Article 162(2)(b) of the Constitution; not expressly cited in the ruling)

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, "Kubai Investment Limited v Sian Enterprises Limited & 5 others (Environment & Land Case 53 of 2019) [2024] KEELC 4085 (KLR)", Case Analysis (2024). Environment and Land Case (not specified in excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4085/eng@2024-05-22

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