Sadera & another (Both suing as the son, next of kin and legal representative of the estate of the late Parsapaet Ole Sadera alias Parasapayet Ole Sadera) v Sankei (Land Case E012 of 2023) [2024] KEELC 6262 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a bid to strike out a land suit as time-barred, because the limitation argument depended on disputed facts requiring a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is statute-barred under Sections 4(1)(a) and 7 of the Limitations of Actions Act such that it can be determined via preliminary objection
The preliminary objection fails because the limitation plea depends on disputed facts, notably the sale agreement, which must be tested at trial
The court applied Mukisa Biscuits, Oraro v Mbaja and Quick Enterprises: a preliminary objection must be a pure point of law on undisputed facts. Here the defendant filed a replying affidavit rebutting the plaintiffs' claims with evidence including a sale agreement, meaning facts are contested. The limitation argument required the court to examine evidence, which defeats the essence of a preliminary objection; the matter must proceed to trial.
Legal principles established
#- A preliminary objection must rest on undisputed facts and a pure point of law; it cannot be raised where facts must be ascertained or where judicial discretion is sought
Court orders
#- 1.Notice of preliminary objection dated 14th December 2023 dismissed
- 2.Costs to be in the cause
- 3.Mention on 8th October 2024 for further directions
- Jurisdiction invoked
- First-instance civil suit; preliminary objection under the Limitations of Actions Act, Cap 22
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sadera & another (Both suing as the son, next of kin and legal representative of the estate of the late Parsapaet Ole Sadera alias Parasapayet Ole Sadera) v Sankei (Land Case E012 of 2023) [2024] KEELC 6262 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6262/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.