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ELCDismissedNot stated in judgment (Machakos ELC)· [2024] KEELC 6954 (KLR)

Kituku & another (Suing as the Personal Representatives of the Estate of the Late William Kituku Ndolo) v Mwangangi & 15 others (Environment & Land Case E101 of 2021) [2024] KEELC 6954 (KLR)

Environment and Land Court
16 October 2024
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court threw out a defendant's attempt to dismiss a suit on time limitations because the objection relied on disputed facts, not pure law.

What this practically means

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Executive summary

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The 15th defendant in a land suit before the Environment and Land Court at Machakos raised a preliminary objection dated 26th February 2024 seeking dismissal of the plaintiffs' suit on the ground that the claim to recover land was time-barred under Sections 7 and 9 of the Limitation of Actions Act, and that the court therefore lacked jurisdiction over it. The objection was canvassed by written submissions. In submissions, the 15th defendant introduced two further arguments not contained in the objection: that the court had no jurisdiction because the plaint raised probate issues, and that the suit contravened Section 16 of the Limitation of Actions Act, the plaintiffs having allegedly known of the 2008 subdivision. The plaintiffs opposed, relying on Mukisa Biscuits and arguing that the objection rested on disputed facts, since the plaint averred that the impugned titles issued on 31st December 2014 and the suit was filed on 8th December 2021, within twelve years. The court held that submissions cannot create new issues beyond the pleadings, amounting to trial by ambush, and declined to address the new grounds. On the objection as filed, it found the allegation that the plaintiffs knew of the 2008 subdivision vague, unpleaded and unproved, so the objection depended on contested facts and was not a pure point of law. The preliminary objection was dismissed with costs to the plaintiff. The main suit proceeds to full hearing.

Key legal issues

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01

Whether the objection based on Sections 7 and 9 of the Limitation of Actions Act was a proper preliminary objection on a pure point of law

Holding

It was not, because it depended on disputed and unpleaded facts, particularly when the plaintiffs acquired knowledge of the subdivision

Reasoning

The 15th defendant alleged the plaintiffs knew of the 2008 subdivision, but the plaint made no such averment and the source of the allegation was not disclosed. Even knowledge of the year of subdivision would not necessarily establish knowledge of the facts on that date. The objection therefore required ascertainment of facts, disqualifying it as a preliminary objection under the Mukisa Biscuits test.

p. 4
02

Whether the court could consider the new grounds (probate jurisdiction and Section 16 of the Limitation of Actions Act) raised only in submissions

Holding

No; submissions cannot expand the grounds of a preliminary objection beyond what is pleaded

Reasoning

The objection as filed raised only Sections 7 and 9 of the Limitation of Actions Act. The arguments on probate matters and Section 16 appeared for the first time in submissions. Since submissions are persuasive arguments and not substitutes for pleadings, allowing them would amount to trial by ambush and an unfair trial. The court declined to address those new issues.

p. 3

Legal principles established

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  • Submissions cannot introduce new issues not raised in the pleadings or objection; a party cannot use submissions to go on a frolic of their own.
  • A proper preliminary objection must rest on undisputed facts and raise a pure point of law.

Court orders

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  1. 1.The preliminary objection dated 26th February 2024 filed by the 15th defendant is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (statutory, not expressly cited in the extract)

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, "Kituku & another (Suing as the Personal Representatives of the Estate of the Late William Kituku Ndolo) v Mwangangi & 15 others (Environment & Land Case E101 of 2021) [2024] KEELC 6954 (KLR)", Case Analysis (2024). Not stated in judgment (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6954/eng@2024-10-16

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