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ELCDismissedNot stated in judgment· [2024] KEELC 4795 (KLR)

Not stated in judgment (Plaintiffs v 1st & 2nd Defendants & Others)

Environment and Land Court
13 June 2024
3,256 words in judgment
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·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kericho ruled that a claim that a land case is too old must be decided at trial with evidence, not thrown out early.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (Omollo, J) determined a preliminary objection by the 1st and 2nd Defendants to the Plaintiffs' suit concerning land parcel Kericho/Cheptalal/359. The Defendants argued that the suit, seeking declarations of trust and proprietorship arising from a 1984 sale agreement, was time barred under Section 7 of the Limitation of Actions Act, having been filed thirty-seven years after the cause of action arose, and was frivolous and an abuse of process. The Plaintiffs responded that their claim was founded on trust and on fraud committed on 4th May, 2021 when the Defendants obtained a parallel title, that limitation does not apply to a beneficiary's action to recover trust property, and that the second ground of the objection was factual and thus not a proper preliminary objection. The court, citing Oraro v Mbaja, held that a preliminary objection must be a pure point of law unblurred by contested facts. Relying on Sichuan Huashi Enterprises Corp. Ltd v Micheal Misiko Muhindi, Oruta v Nyamato and Divecon Ltd v Shirinkhanu S. Samani, the court held that the defence of limitation of time must be determined at trial on evidence, not summarily by preliminary objection, and that given the sensitive and sentimental nature of land disputes it would be absurd to dismiss such a suit on a bare assertion of delay. The preliminary objection dated 28th September, 2023 was dismissed, with costs of the objection abiding the outcome of the suit.

Key legal issues

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01

Whether the Plaintiffs' suit is time barred under Section 7 of the Limitation of Actions Act and whether that can be determined as a preliminary objection

Holding

The preliminary objection failed; limitation cannot be resolved summarily as a preliminary objection because it requires evidence and determination at trial.

Reasoning

The court noted that a preliminary objection must be a pure point of law, unblurred by contested facts. The limitation question turned on when the cause of action accrued, which depends on whether the claim is founded on the 1984 sale agreement, on trust, or on the alleged fraud of 4th May 2021 — factual matters requiring evidence. Given the sensitive nature of land disputes, it would be absurd to dismiss such a suit summarily on one party's assertion of delay.

p. 7

Legal principles established

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  • The defence of limitation of time is a matter for determination at the trial on evidence, and cannot be disposed of by way of a preliminary objection.

Court orders

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  1. 1.The 1st and 2nd Defendants' Preliminary Objection dated 28th September, 2023 is dismissed
  2. 2.The costs of the preliminary objection shall abide the outcome of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Not stated in judgment (Plaintiffs v 1st & 2nd Defendants & Others)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4795/eng@2024-06-13

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