[2019] KEELC 921 (KLR)
The court held that the plaintiff's preliminary objection was without merit because section 4(4) of the Limitation of Actions Act relates specifically to the limitation period for execution of judgments, not to applications for change of advocates. The application before the court did not seek to enforce, set aside,...
Source-derived case information.
- Citation
- [2019] KEELC 921 (KLR)
- Parties
- Plaintiff: Gitere Kahura Investments Limited; Defendant: Samuel Mundati Gatabaki; Defendant: Nancy Wanja Gatabaki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 552 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application for Change of Advocates
- Outcome
- Plaintiff's preliminary objection dismissed; defendants' application for change of advocates allowed.
- Legal Topics
- Change of Advocates, Limitation Periods, Vesting Orders, Consent Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gitere Kahura Investments Limited
Plaintiff
Samuel Mundati Gatabaki
Defendant
Nancy Wanja Gatabaki
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application for Change of Advocates
Legal Issues
- 1 Whether the defendants' application for change of advocates is time barred under section 4(4) of the Limitation of Actions Act.
- 2 Whether the plaintiff's preliminary objection to the defendants' application has merit.
- 3 Whether the suit is extinguished by entry of judgment and consent decree.
Ratio Decidendi
The court held that the plaintiff's preliminary objection was without merit because section 4(4) of the Limitation of Actions Act relates specifically to the limitation period for execution of judgments, not to applications for change of advocates. The application before the court did not seek to enforce, set aside, or vary the judgment, but merely sought leave for a new firm to come on record for the defendants. The court found that the plaintiff's arguments regarding limitation and extinguishment of the suit were speculative and premature, as the nature of the intended substantive application by the defendants was not yet before the court. Accordingly, the preliminary objection was...
Court Disposition
Plaintiff's preliminary objection dismissed; defendants' application for change of advocates allowed.
Orders
- Plaintiff's Preliminary Objection dated 27th February, 2018 is dismissed with costs.
- Defendants' application dated 19th January, 2018 is allowed in terms of prayer 2.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC SUIT NO. 552 OF 2018
GITERE KAHURA INVESTMENTS LIMITED........................................PLAINTIFF
VERSUS
SAMUEL MUNDATI GATABAKI......................................................1ST DEFENDANT
NANCY WANJA GATABAKI............................................................2ND DEFENDANT
RULING
This suit was settled through a consent that was recorded before O’ Connor J. on 3rd October, 1985. A consent decree was thereafter extracted and issued on 20th January, 1987. Pursuant to the said decree, an order was made on 13th June, 1986 vesting all that parcel of land known as L.R No. 5980/4 situated in Kiambu Municipality measuring 24. 28 hectares upon the plaintiff. The application for the vesting order was not objected to by the defendants’ advocates when it came up for hearing on 13th June, 1986.
No further action was taken in the matter after the said vesting order until 22nd January, 2018; 32 years later when the defendants brought the present application dated 19th January, 2018 seeking an order that the firm of Gatheru Gathemia & Company Advocates be granted leave to come on record in this matter on behalf of the defendants in place of the firm of M/s Daine & Wariithi Advocates. The application was brought on the grounds that the firm of Daine & Wariithi Advocates who acted for the defendants when the said judgment and vesting orders were made ceased to exist after the death of the senior partner in the firm, Mr. Wariithi Advocate.
The defendants averred that they were desirous of moving the court to rectify some acts of fraud which were perpetrated against them by the plaintiff during the execution of the consent decree issued herein. The defendants averred that they had instructed the firm of Gatheru Gathemia & Company Advocates to act for them in the intended application. The defendants averred further that it would serve the interest of justice if the application was allowed.
The defendants’ application was opposed by the plaintiff through Notice of Preliminary Objection dated 27th February, 2018. In its objection, the plaintiff contended that the defendants’ application was time barred by virtue of section 4(4) of the Limitation of Actions Act, Chapter 22 Laws of Kenya.
The application was heard by way of written submissions. The plaintiff filed its submissions on 29th June, 2018 while the defendants filed their submissions on 9th July, 2018. I have considered the defendants’ application and the Notice of Preliminary Objection filed in opposition thereto by the plaintiff. I have also considered the written submissions by the parties’ respective advocates. The defendants’ application was brought under Order 9 Rule 9 of the Civil Procedure Rules. It is seeking only one principal prayer namely, leave for the firm of Gatheru Gathemia & Company Advocates to come on record in the matter for the defendants in place of the firm of Daine & Wariithi Advocates who were previously acting for the defendants.
I find no merit in the plaintiff’s objection to the application. Section 4 (4) of the Limitation of Actions Act, Chapter 22 Laws of Kenya on which the objection is based relates to the limitation period for execution of judgments. In their application, the defendants have contended that fraud was committed by the plaintiff during the execution of the judgment that was made herein on 3rd October, 1985 and that they intend to move the court to rectify the alleged fraud. As of now, it is not clear as to the nature of the application which the defendants intend to bring to court; whether it will be directed at the judgment or to the vesting order is unknown.
I am in agreement with the defendants that the objections raised by the plaintiff to the application are speculative and premature. The application before the court is not seeking to enforce, set aside or vary the judgment of 3rd October, 1985. The plaintiff’s contention that the application is time barred has no basis in the circumstances. I did not follow the plaintiff’s argument that following the judgment entered on 3rd October, 1985 this suit became “extinguished”. Well; as far as the court is concerned, the suit is finalised judgment having been entered in the matter on 3rd August, 1985. The entry of judgment as aforesaid cannot however be said to have “extinguished” the suit so as to prevent an application like the one currently before the court from being made.
The upshot of the foregoing is that the plaintiff’s Preliminary Objection dated 27th February, 2018 has no merit. The same is dismissed with costs. With the dismissal of the said objection, the defendants’ application dated 19th January, 2018 is now unopposed. The application is allowed in terms of prayer 2 thereof.
Delivered and Dated at Nairobi this 7th day of November 2019
S. OKONG’O
JUDGE
Ruling read in open court in the presence of:
Mr. Gatheru Gathemia for the Plaintiff
Mr. Sumba for the Defendants
C.Nyokabi-Court Assistant