[2017] KEELC 462 (KLR)
The court found that the facts in dispute, including who is in possession and whether the parties claim the same property, are not clear or straightforward. Since these issues require factual determination, the preliminary objection does not raise a pure point of law. The court therefore dismissed the preliminary...
Source-derived case information.
- Citation
- [2017] KEELC 462 (KLR)
- Parties
- Plaintiff: Samedy Trading Company Limited; Defendant: Kigwor Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 295 of 2017
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- AK Bor
- Legal Topics
- Limitation of Actions, Jurisdiction of Court, Preliminary Objection, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samedy Trading Company Limited
Plaintiff
Kigwor Company Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is barred by limitation under Section 7 of the Limitation of Actions Act.
- 2 Whether the preliminary objection raises a pure point of law suitable for determination at this stage.
- 3 Whether the facts regarding possession and identity of the suit property are clear and undisputed.
Ratio Decidendi
The court found that the facts in dispute, including who is in possession and whether the parties claim the same property, are not clear or straightforward. Since these issues require factual determination, the preliminary objection does not raise a pure point of law. The court therefore dismissed the preliminary objection, holding that it is not suitable for summary determination at this stage and should be addressed at trial.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CIVIL SUIT NO. 295 OF 2017
SAMEDY TRADING COMPANY LIMITED.......................PLAINTIFF
VERSUS
KIGWOR COMPANY LIMITED....................................DEFENDANT
RULING
The Defendant has raised an objection challenging the jurisdiction of this court to hear this suit based on Section 7 of the Limitation of Actions Act; which sets the limitation period for recovery of land at 12 years from the date the action accrued. The Defendant claims it was issued with a title in 1996 and has been in possession for 21 years. It contends that the suit was filed this year without leave of court and should be struck out.
The Plaintiff on its part argues that the preliminary objection is misplaced since the cause of action arose in 2015 when the Plaintiff learnt of the Defendant’s encroachment on its land, which is L.R. No. 4144 I. R. No. 69479 Lower Kabete. The Defendant claims to be in possession of the suit property. It also claims that the suit properties are different. The Plaintiff also challenges the Defendant’s title which it claims was issued before the Defendant was incorporated as a company.
A preliminary objection should raise a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained. (See Mukisa Biscuits Manufacturing Company Ltd V. West End Distributors Ltd (1969) EA 696)
The facts in this case are not clear and straight forward. The issue as to who is in possession and whether the Plaintiff and Defendant both claim the same piece of land will have to be determined at the trial.
The court dismisses the preliminary objection with costs to the Plaintiff.
Dated and delivered at Nairobi on 14th December 2017.
K. BOR
JUDGE
Read in open court in the presence of: -
Mr. Karuga for the Plaintiff
Mr. Baragu for the Defendant
Mr. V. Owuor- Court Assistant