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ELCDismissedELC Case of 2018 (Busia)

Olado v County Government of Busia (Environment & Land Case 70 of 2018) [2025] KEELC 259 (KLR)

Environment and Land Court
30 January 2025
5,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A landowner's suit against Busia County survived all attempts to strike it out, and the county must now defend it at a full hearing.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel Bukhayo/Mundika/13570 issued with a title on 2nd July 2018 following succession proceedings, sued the County Government of Busia seeking an order directing the County Surveyor to establish the parcel's boundary and an order removing a restriction lodged by the defendant, which had stopped a demarcation exercise. The defendant filed an amended defence and counterclaim alleging the title was artificial, that the land was leasehold reserved for a public slaughter house since 1988, and sought a permanent injunction. Before trial, the defendant raised a Preliminary Objection dated 12th April 2024 and a Notice of Motion dated 24th June 2024 contending that the suit was time barred under Sections 7 of the Limitation of Actions Act and 3(1) of the Public Authorities Limitation Act, that leave under Sections 27 and 28 was not obtained, that no Section 13A Government Proceedings Act notice was served, and that the suit breached Order 2 Rule 15 of the Civil Procedure Rules. Boaz N. Olao J treated both applications as a Preliminary Objection and dismissed them in their entirety. He held that limitation could only run from issuance of the title on 2nd July 2018, that trespass to land is a continuing tort with no limitation period, that leave under Sections 27 and 28 was unnecessary as the claim is not one for personal injuries in tort, that failure to serve a Section 13A notice is not fatal following binding Court of Appeal authority, and that the suit raises serious triable issues unfit for summary striking out. Both applications were dismissed with costs to the plaintiff, and the suit was listed for hearing on 20th March 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff's suit is time barred under Section 7 of the Limitation of Actions Act
  2. 2.Whether the suit is time barred under Section 3(1) of the Public Authorities Limitation Act
  3. 3.Whether the plaintiff required leave under Sections 27 and 28 of the Limitation of Actions Act before filing suit
  4. 4.Whether failure to serve a Notice of Intention to Institute Proceedings under Section 13A of the Government Proceedings Act renders the suit a nullity
  5. 5.Whether the suit contravenes Order 2 Rule 15 of the Civil Procedure Rules and should be struck out

Key legal issues

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01

Whether the suit is time barred under Section 7 of the Limitation of Actions Act

Holding

Not time barred; time could only run from issuance of the title deed on 2nd July 2018, one month before filing, and trespass is a continuing tort

Reasoning

The suit land did not exist in 1977 or the 1980s when the defendant claims the slaughter house land was earmarked and built. The title deed issued on 2nd July 2018 and the suit was filed on 6th August 2018. Further, the claim borders on trespass to land, a continuing tort for which there is no limitation of time, each continuance of the trespass founding a fresh cause of action.

p. 7
02

Whether the suit is time barred under Section 3(1) of the Public Authorities Limitation Act

Holding

Not applicable; the cause of action accrued on 2nd July 2018 and trespass is a continuing tort

Reasoning

Section 3(1) bars tort proceedings against Government or a local authority after twelve months. The cause of action could only accrue when the suit land came into existence on 2nd July 2018, and the suit was filed within a month. Since the claim is founded on a continuing trespass, it cannot be defeated by that provision.

p. 7
03

Whether leave under Sections 27 and 28 of the Limitation of Actions Act was required

Holding

Leave was not required; the three-year period under Section 4(2) had not expired and extension of time applies only to personal injury claims in tort

Reasoning

Section 4(2) bars tort actions after three years. The cause of action accrued on 2nd July 2018 and the suit was filed within the period. In any event, Section 27 leave extends time only for negligence, nuisance or breach of duty claims involving personal injuries, which this claim is not.

p. 8
04

Whether failure to serve a Section 13A Government Proceedings Act notice renders the suit a nullity

Holding

Not fatal; Section 13A's 'shall' is directory, and failure to comply does not render the suit incompetent, following binding Court of Appeal authority

Reasoning

A county government is a body corporate capable of being sued in its own name. The Court of Appeal in Council of Governors v Senate held that failure to comply with Section 13A does not render a suit incompetent, a decision binding on this court. The decision in David Njenga Ngugi also held the word 'shall' in Section 13A to be directory, so non-compliance cannot hamper the right to sue.

p. 10
05

Whether the suit should be struck out under Order 2 Rule 15 of the Civil Procedure Rules

Holding

No; the power to strike out is discretionary and draconian, and the suit raises serious triable issues warranting a full hearing

Reasoning

Order 2 Rule 15(1) empowers the court to strike out pleadings, but the power must be exercised cautiously and without delving into merits. The defendant's submissions addressed evidence going to the merits, which is beyond the scope of such an application. So long as a pleading raises triable issues, the suit must proceed, and denying a subject a hearing should be the last resort of the court.

p. 11

Legal principles established

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  • A Preliminary Objection must be a pure point of law and cannot be raised where facts have to be ascertained
  • Trespass to land is a continuing tort in respect of which limitation does not run, since every continuance of trespass is a fresh cause of action
  • Failure to comply with Section 13A of the Government Proceedings Act does not render a suit incompetent
  • The power to strike out a suit is draconian and should only be deployed in the clearest of cases without delving into the merits

Court orders

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  1. 1.The defendant's Preliminary Objection dated 12th April 2024 is dismissed
  2. 2.The defendant's Notice of Motion dated 24th June 2024 is dismissed
  3. 3.Costs of both the Preliminary Objection and the Notice of Motion awarded to the plaintiff
  4. 4.The matter listed for hearing on 20th March 2025

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land parcel Bukhayo/Mundika/13570

Relief refused

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Striking out or dismissal of the plaintiff's suit as sought in the Preliminary Objection and Notice of Motion

The limitations and notice objections failed; the suit raises triable issues fit for a full hearing

p. 11

Costs

Both the Preliminary Objection dated 12th April 2024 and the Notice of Motion dated 24th June 2024 dismissed with costs to the plaintiff.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Guided by all the above, I find no merit in the defendant's Preliminary Objection dated 12th April 2024 and Notice of Motion dated 24th June 2024. Both are accordingly dismissed with costs to the plaintifi.
p. 11Final orders - dismissal of Preliminary Objection and Notice of Motion
The Preliminary Objection invoking Section 7 of the Limitation of Actions Act is not well founded. It is hereby dismissed.
p. 7Limitation under Section 7 of the Limitation of Actions Act
This court has the power to strike out a suit. The power is discretionary but also draconian and it is therefore a tool which should only be deployed in the clearest of cases.
p. 10Striking out power under Order 2 Rule 15
It is clear, therefore, that failure to serve a Notice of Intention to Institute proceedings against Defendant vide Section 13A of the Government Proceedings Act is not fatal to the Plaintifi's case.
p. 10Notice under Section 13A Government Proceedings Act
A Preliminary Objection correctly understood, is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested
p. 6Definition of a Preliminary Objection
This being a 2018 case, I further take the liberty and list it for hearing on 20th March 2025.
p. 11Direction for hearing

Issues in the judgment

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minor

Internal inconsistency in dates: counsel submits the plaintiff's father died on 26th December 1979 while the Notice of Motion depones he died on 26th December 1997

minor

Counsel's submission gives the filing date as 8th August 2018 whereas the judgment records the suit was filed on 6th August 2018

minor

The reply to the Preliminary Objection is described as dated 4th June 2024 while the Preliminary Objection itself is dated 12th April 2024, but at paragraph 12 the court refers to 'the Preliminary Objection dated 4th June 2024'

minor

Counsel's submission mis-cites Order 2 Rule 14 subrule (1) of the 'Civil Procedure Code' when invoking Order 2 Rule 15 of the Civil Procedure Rules

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, "Olado v County Government of Busia (Environment & Land Case 70 of 2018) [2025] KEELC 259 (KLR)", Case Analysis (2025). ELC Case of 2018 (Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/259/eng@2025-01-30

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