[1996] KECA 85 (KLR)
The Court of Appeal held that the High Court erred in dismissing the suit on a preliminary point of law without ascertaining the relevant facts regarding when the appellant's possession became adverse and when the limitation period commenced. The court emphasized that preliminary objections are only appropriate...
Source-derived case information.
- Citation
- [1996] KECA 85 (KLR)
- Parties
- Appellant: Eunice Karimi Kibunja; Respondent: Mwirigi M’Ringera Kibunja
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 103 of 1996
- Procedural Posture
- Civil Appeal / Appeal From Ruling on Preliminary Objection
- Outcome
- appeal allowed
- Legal Topics
- Adverse Possession, Limitation of Actions, Preliminary Objection, Originating Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Karimi Kibunja
Appellant
Mwirigi M’Ringera Kibunja
Respondent
Procedural Posture
Civil Appeal / Appeal From Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit for adverse possession was properly dismissed on a preliminary point of law as being time barred.
- 2 Whether a preliminary objection can be sustained where facts need to be ascertained.
Ratio Decidendi
The Court of Appeal held that the High Court erred in dismissing the suit on a preliminary point of law without ascertaining the relevant facts regarding when the appellant's possession became adverse and when the limitation period commenced. The court emphasized that preliminary objections are only appropriate where the facts are not in dispute and can be determined without evidence. Since the issue of adverse possession inherently involves factual determination, the matter should have proceeded to a full hearing. The appeal was therefore allowed, and the case remitted to the High Court for hearing on its merits.
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs here and in the court below.
- The case is remitted to the superior court for hearing on its merits.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NYERI
Civil Appeal 103 of 1996
EUNICE KARIMI KIBUNJA.…………………..….………APPELLANT
AND
MWIRIGI M’RINGERA KIBUNJA………………….…RESPONDENT
(Appeal from Ruling and decree of the High Court of Kenya at Meru (Kuloba J) dated 4th March, 1993
IN
H. C. C. C. NO. 126 OF 1992)
************************
JUDGMENT OF THE COURT
This is an appeal by the unsuccessful plaintiff whose suit by way of an originating summons was dismissed by the superior court (Kuloba, J.) by his ruling delivered on March 4, 1993 on a so called preliminary point of law that the suit was time barred.
By her originating summons the plaintiff claimed a declaration that she had become entitled by adverse possession to 5 acres out of a parcel of land ABOTHUGUCHA/GITHONGO/494. Without any evidence or finding as to when the possession by the plaintiff became adverse to that of the defendant or when the suit became barred by limitation, the judge dismissed the plaintiff suit.
We have carefully considered the appellant,’ complaint and find that the complaint is fully justified. The issue before court clearly required a full hearing and we reiterate that the practice of raising point, which should be argued in the normal manner, by way of preliminary objection does nothing but unnecessarily increase cost and, on occasion, confuse the issues. A preliminary point cannot be raided if any fact has to be ascertained.
Accordingly and, for the reasons above stated, the appeal is allowed with costs here and in the court below and the case is remitted to the superior court for hearing on its merits.
Dated and delivered at Nyeri this 16th day of October, 1996.
J. E. GICHERU
…………………….
JUDGE OF APPEAL
R.O. KWACH
……………………..
JUDGE OF APPEAL
A.A.LAKHA
…………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR