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ELCDismissed· [2024] KEELC 6262 (KLR)

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)

Environment and Land Court
26 September 2024
1,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The defendant filed a notice of preliminary objection dated 14th December 2023 seeking dismissal of the plaintiffs' suit over land parcel CisMara/Ewaso-Nyiro/396, contending the suit was statute-barred under Sections 4(1)(a) and 7 of the Limitations of Actions Act, being based on a sale agreement dated 26th November 2008 and possession taken in 2010 or 2011. The objection was canvassed by written submissions. The defendant relied on Mehta v Shah, Gathoni v KCC and other authorities on limitation. The plaintiffs opposed, submitting that a preliminary objection must rest on undisputed facts and pure points of law, that the authenticity of the defendant's transfer documents required examination, and that limitation cannot defeat the constitutional property right under Article 40 where fraud is alleged. The court, applying the Mukisa Biscuits definition as reinforced by Oraro v Mbaja and Quick Enterprises, found that a preliminary objection must proceed on undisputed facts, whereas here the defendant had rebutted the plaintiffs' claims in a replying affidavit with evidence including the sale agreement. Determining limitation would require the court to comb through evidence and ascertain facts, defeating the essence of a preliminary objection. The objection was dismissed with costs in the cause, and the matter set for mention on 8th October 2024 for further directions. Dated, signed and delivered via email on 26th September 2024 by Hon. Mbogo C.G, Judge.

Key legal issues

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01

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

Holding

The preliminary objection fails because the limitation plea depends on disputed facts, notably the sale agreement, which must be tested at trial

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Notice of preliminary objection dated 14th December 2023 dismissed
  2. 2.Costs to be in the cause
  3. 3.Mention on 8th October 2024 for further directions

Authorities

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Legislation

  • Limitations of Actions Act, Cap 22Section 4(1)(a)
  • Limitations of Actions Act, Cap 22Section 7
  • Constitution of KenyaArticle 40

Cases cited (15)

  • Mehta versus Shah
    [1965] EA 321
  • Gathoni versus Kenya Cooperative Creameries Limited
    [1982] eKLR
  • Salim Mohamed Salim Tweshe versus Khalid Salim Naaman & 5 Others
    [2020] eKLR
  • Dickson Ngige Ngugi versus Consolidated Bank Limited
    [2020] eKLR
  • Damaris Kondoro versus Gachanja Gitare & Others
    [2005] eKLR
  • Beatrice Wambui Kiarie & 9 Others
    [2018] eKLR
  • Republic versus Eldoret Water & Sanitation Company Limited Exparte Booker & Onyango & 2 Others
    [2007] eKLR
  • Justus Tureti Obara versus Peter Koipeitai
    [2014] eKLR
  • Avtar Singh Bhamra & Another versus Oriental Commercial Bank
    HCC No. 53 of 2004
  • Daniel Okasisi Olegerea & Another versus Barasa Ekapoloni Auku
    [2015] eKLR
  • David Gitau Njau & 9 Others versus The Attorney General
    [2013] eKLR
  • Ramji Megji Gudka Limited versus Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd versus Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Oraro verus Mbaja
    (2005) 1KLR 141
Jurisdiction invoked
First-instance civil suit; preliminary objection under the Limitations of Actions Act, Cap 22

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, "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.