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ELCDismissedMemo of appeal dated 4th October, 2023, arising from CMELC No E043 of 2023· [2024] KEELC 4930 (KLR)

Karia v Keshe (Environment and Land Appeal 6 of 2023) [2024] KEELC 4930 (KLR)

Environment and Land Court (appellate jurisdiction over subordinate court)
24 June 2024
2,255 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed an appeal seeking to throw out a 21-year-old land sale claim because the buyer's timeline of events was never disputed in pleadings.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court against a ruling of Hon S. Mungai in CMELC No E043 of 2023 dismissing the appellant's preliminary objection. The underlying dispute concerns a 2002 agreement under which the respondent alleged he purchased 5 acres out of parcel Cis-Mara/Nkoben/373 for Kshs 100,000/-, took possession, and sought specific performance by plaint and notice of motion both dated 17th April 2023. The appellant filed no defence or response, instead raising a preliminary objection dated 4th May 2023 that the suit was time barred and that the court lacked jurisdiction under Section 7 of the Limitation of Actions Act. The trial court dismissed the objection. On appeal, Mbogo J accepted the trial court erred in referring to Section 7 of the Civil Procedure Act rather than the Limitation of Actions Act and did not pronounce itself on limitation. Applying Mukisa Biscuit and Avtar Singh Bhamra, the court held that a preliminary objection must rest on undisputed facts arising from the pleadings. Since limitation turned on when the cause of action accrued, and the appellant had filed no pleadings disputing the respondent's account, the court could not determine the suit was time barred. The preliminary objection and the appeal were dismissed with costs to the respondent.

Key legal issues

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01

Whether the preliminary objection on limitation could be upheld on the pleadings

Holding

No. Although the objection raised a pure point of law under Section 7 of the Limitation of Actions Act, the court could not hold the suit time-barred because the appellant filed no defence or response, and whether the suit was time barred depended on ascertaining facts from pleadings yet to be filed.

Reasoning

The court restated the Mukisa Biscuit test: a preliminary objection must rest on undisputed facts arising from the pleadings. A limitation plea requires the court to compute when the right of action accrued, which must be gleaned from the pleadings. As the appellant filed neither a defence nor a response disputing the respondent's account of the 2002 sale, the court could not determine the claim was time barred, and the objection failed.

p. 5
02

Whether the trial court failed to determine the preliminary objection

Holding

The trial court did not pronounce itself on limitation under Section 7 of the Limitation of Actions Act and erroneously referred to Section 7 of the Civil Procedure Act, but this error did not result in a different outcome.

Reasoning

The High Court (ELC) agreed the trial court may not have determined the preliminary objection fully, having referred to the wrong statutory provision. However, on independent analysis the objection itself failed on its merits because it required ascertainment of facts, so the appeal was dismissed notwithstanding that shortcoming.

p. 4

Legal principles established

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  • A preliminary objection must be premised on undisputed facts, raise pure points of law sprouting from the pleadings, and cannot be raised where facts have to be ascertained or judicial discretion exercised
  • In a limitation challenge the court must restrain itself to the pleadings; where the defendant has not filed a defence or response disputing when the cause of action accrued, the court cannot determine that the suit is time barred
  • The purpose of limitation law is to prevent prosecution of stale claims and protect defendants who have lost evidence for their defence

Court orders

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  1. 1.The notice of preliminary objection dated 4th May, 2023 fails and is dismissed
  2. 2.The memorandum of appeal dated 4th October, 2023 is dismissed
  3. 3.Costs of the appeal to the respondent

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitations of Actions Act, Cap 22 Laws of KenyaSection 7
  • Civil Procedure ActSection 7

Cases cited (11)

  • Gathoni v Kenya Co-operative Creameries Limited
    [1982] KLR 104
  • Monata Matiko Chonchorio v John Marwa Chabaro
    [2021] eKLR
  • Bosire Ogero v Royal Media Services
    [2015] eKLR
  • Child Welfare Society of Kenya v Republic, Ex-parte Child in Focus Kenya & AG & others
    [2017] eKLR
  • Delilah Ondari v Francis Ondieki Atandi
    [2022] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & others
    [2012] eKLR
  • Orange Democratic Movement v Yusuf Ali Mohamed & 5 others
    [2018] eKLR
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    [2015] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Avtar Singh Bhamra & another v Oriental Commercial Bank
    HCC No 53 of 2004
  • Mehta v Shah
    [1965] E.A 321
On appeal from
Magistrates' Court (CMELC No E043 of 2023)
CMELC No E043 of 2023
Jurisdiction invoked
Appellate jurisdiction over the magistrate's court ruling in CMELC No E043 of 2023 (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karia v Keshe (Environment and Land Appeal 6 of 2023) [2024] KEELC 4930 (KLR)", Case Analysis (2024). Memo of appeal dated 4th October, 2023, arising from CMELC No E043 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4930/eng@2024-06-24

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