Salim & 3 others (Suing for and on Behalf of the Beneficiaries of the Wakf of the Late Mohamed Said Abdun Bamkelle) v Wakf Commissioners of Kenya and 69 others (Environment & Land Case 209 of 2014) [2024] KEELC 4633 (KLR)
The bottom line
#A Mombasa land court threw out two attempts to end a land dispute early, ruling both depended on facts that must be proved at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by Sections 7 and 20 of the Limitation of Actions Act
The preliminary objection fails because the commencement date of the limitation period is a question of fact for trial
The defendants placed the accrual date in 1926 when the Supreme Court at Mombasa vested title in the 1st defendant; the plaintiffs contended accrual in 2010 when rent payments ceased. Determining when time began to run would require evidence and an inquiry into the merits, which is impermissible on a preliminary objection. The objection was therefore dismissed with costs.
Whether the 2nd defendant, alleged to be a society registered under Cap 108, has locus standi to be sued
The objection fails because the fact of registration is contested and any misjoinder is curable
The court took judicial notice that societies are registered under the Societies Act, but the plaintiffs cast doubt on the 2nd defendant's registration, making it a factual issue requiring evidence. Further, Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by misjoinder or non-joinder of parties. The objection was dismissed with costs.
The governing principles of preliminary objections
The Mukisa Biscuit test applies: a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct
The court adopted Law JA's and Sir Charles Newbold P's formulations in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, applying them to hold that both objections, being entangled with contested facts, were improperly raised as preliminary points.
Legal principles established
#- A limitation defence that depends on establishing when the cause of action accrued is not a pure point of law and cannot succeed as a preliminary objection
- A suit shall not be defeated by reason of misjoinder or non-joinder of parties
Court orders
#- 1.The notice of preliminary objection by the 1st defendant is dismissed with costs
- 2.The notice of preliminary objection by the 2nd defendant is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (determination of preliminary objections in a land suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim & 3 others (Suing for and on Behalf of the Beneficiaries of the Wakf of the Late Mohamed Said Abdun Bamkelle) v Wakf Commissioners of Kenya and 69 others (Environment & Land Case 209 of 2014) [2024] KEELC 4633 (KLR)", Case Analysis (2024). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4633/eng@2024-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.