Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract· [2024] KEELC 4633 (KLR)

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)

Environment and Land Court
11 June 2024
1,143 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
This is a ruling of the Environment and Land Court at Mombasa (Matheka J) on two notices of preliminary objection directed at the plaintiffs' land suit. The 2nd defendant objected that, being a society registered under the Societies Act (Cap 108), it lacked capacity to be sued, relying on church/society authorities including Eritrea Orthodox Church v Warowax General Ltd. The 1st defendant (supported by the 13th defendant) objected that the suit was time-barred under Sections 7 and 20 of the Limitation of Actions Act, contending that title was vested in the 1st defendant by the Supreme Court at Mombasa in 1926 and that the beneficiaries' claim to trust property was also out of time, relying on Dickson Ngige and Alex Sande Wafula. The plaintiffs, invoking Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, argued that the objections depended on contested facts: they pleaded receipt of rent from the 1st defendant until about 2010, when the cause of action allegedly arose, and disputed the 2nd defendant's registration status. The court applied the Mukisa Biscuit principles and held that both objections turned on facts requiring evidence - when the cause of action accrued, and whether the 2nd defendant was in fact a registered society - and could not be resolved as pure points of law. It further held that any defect concerning the 2nd defendant was curable under Order 1 Rule 9 of the Civil Procedure Rules. Both preliminary objections were dismissed with costs; the suit proceeds to trial.

Key legal issues

#
01

Whether the suit is barred by Sections 7 and 20 of the Limitation of Actions Act

Holding

The preliminary objection fails because the commencement date of the limitation period is a question of fact for trial

Reasoning

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.

p. 3
02

Whether the 2nd defendant, alleged to be a society registered under Cap 108, has locus standi to be sued

Holding

The objection fails because the fact of registration is contested and any misjoinder is curable

Reasoning

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.

p. 3
03

The governing principles of preliminary objections

Holding

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

Reasoning

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.

p. 3

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. 1.The notice of preliminary objection by the 1st defendant is dismissed with costs
  2. 2.The notice of preliminary objection by the 2nd defendant is dismissed with costs

Authorities

#

Legislation

  • Societies ActCap 108
  • Limitation of Actions ActSections 7 and 20
  • Evidence ActSection 60
  • Civil Procedure RulesOrder 1 Rule 9

Cases cited (6)

  • Eritrea Orthodox Church v Warowax General Ltd
    (2007) eKLR
  • African Orthodox Church of Kenya v Charles Omuroka & another
    (2014) eKLR
  • Dickson Ngige v Consolidated Bank Ltd & another
    (2020) eKLR
  • Alex Sande Wafula (suing as the legal representative of the estate of the late Wafula Mulunda John (Deceased) v Jairus Wakhungu Mulunda
    (2017) eKLR
  • Leonard Okome Onyango v George Ouma Euko
    ELC No. 24 of 2016, eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
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.