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ELCStruck OutNot stated in the judgment· [2025] KEELC 2961 (KLR)

Kimani v Agropack Ltd & 3 others (Environment & Land Case 1 of 2023) [2025] KEELC 2961 (KLR)

Environment and Land Court
24 March 2025
JOJ. M Onyango
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Thika struck out a land dispute suit as too late, ruling breach-of-contract claims must be filed within six years in Kenya.

What this practically means

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Executive summary

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The Plaintiff sued the 1st, 2nd and 3rd Defendants (with a 4th Defendant as guarantor) claiming that under an agreement dated 15th August 2016 the Defendants were to pay him Kshs 2,000,000 and excise a half-acre from L.R No. 25009 in Kiambu as a condition for rescinding an earlier sale agreement. Fearing an unlawful sale, he sought a prohibitory order against the title, excision and transfer of the portion, registration, and interest on the Kshs 2,000,000. The Defendants raised a preliminary objection that the suit, founded on the 2016 contract, is time-barred under section 4(1)(a) of the Limitation of Actions Act, and that the Amended Plaint offends Order 4 Rules 1(1)(f) and 2 of the Civil Procedure Rules for want of a verifying affidavit. Applying Mukisa Biscuit, the court framed two issues. It held that all the reliefs flowed from the breached 2016 agreement; sections 7 and 9(3) (recovery of land) and section 19(1) (mortgage money or proceeds of sale) invoked by the Plaintiff were inapplicable since there was no prior possession, no mortgage and no sale. The cause of action being breach of contract accruing in 2016, the suit filed on 23rd May 2023 was time-barred and the court lacked jurisdiction, and downed its tools. The second issue was not reached. The preliminary objection was upheld, the suit struck out, with costs to the Defendants.

Key legal issues

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01

Whether the suit is time-barred under section 4(1)(a) of the Limitation of Actions Act

Holding

The cause of action is breach of the 15th August 2016 agreement, which accrued in 2016; the suit filed on 23rd May 2023 is time-barred and the court lacks jurisdiction. Sections 7, 9(3) and 19(1) relied on by the Plaintiff do not apply as the suit is not for recovery of land or mortgage/proceeds of sale.

Reasoning

The reliefs sought all flow from the sale agreement allegedly breached by the Defendants. The Plaintiff's invocation of sections 7 and 9(3) (recovery of land) fails because recovery of land requires prior possession, which is absent. Section 19(1) (mortgage money or proceeds of sale) fails because there is no mortgage and the suit land has not been sold. The claim being founded on contract accruing in 2016, the six-year period under section 4(1)(a) had expired.

p. 4
02

Whether the Amended Plaint should be struck out for want of a verifying affidavit

Holding

The court found it unnecessary to determine this second issue since the suit was already struck out on limitation grounds.

Reasoning

Having found that the suit is time-barred and that the court lacks jurisdiction, the court declined to venture into the second issue concerning the absence of a verifying affidavit accompanying the Amended Plaint, since the jurisdictional finding was dispositive of the entire matter.

p. 5

Legal principles established

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  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained.
  • Actions founded on contract may not be brought after six years from the date the cause of action accrued.
  • Where a suit is time-barred the court lacks jurisdiction and must down its tools.

Court orders

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  1. 1.The suit is struck out.
  2. 2.The Plaintiff shall bear the costs of the preliminary objection and the suit.

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)(a)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9(3)
  • Limitation of Actions ActSection 19(1)
  • Civil Procedure RulesOrder 4 Rules 1(1)(f) and 2

Cases cited (8)

  • Divecon vs Samani
    Civil Appeal No. 142 of 1997
  • Beatrice Kahai Adagala vs Postal Corporation of Kenya
    [2015] eKLR
  • Rift Valley Railways (Kenya) Ltd vs Hawkins Wagunza Musonye & Desidery Tyson Otieno
    [2016] eKLR
  • Priska Onyango Ojuang' & Another vs Henry Ojwang Nyabende
    [2018] eKLR
  • Interim Independent Electoral Commission
    [2011] eKLR
  • Owners of Motor Vessel "Lilian S" vs Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Greogory Mburu vs Thika District Hospital
    [2018] eKLR
  • Mukisa Biscuit Company Ltd v West End Distributors Limited
    (1969) E.A 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; objection founded on section 4(1)(a) of the Limitation 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, "Kimani v Agropack Ltd & 3 others (Environment & Land Case 1 of 2023) [2025] KEELC 2961 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2961/eng@2025-03-24

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