[2017] KEHC 2974 (KLR)

[2017] KEHC 2974 (KLR)

The court held that the preliminary objection did not raise a pure point of law because the determination of when time began to run for purposes of adverse possession—whether from 1992 as claimed by the plaintiff or from 19/10/2015 as claimed by the defendant—was a factual issue requiring evidence. As such, the matter could not be resolved at the preliminary stage, and the objection was dismissed with costs to the plaintiff.

Citation
[2017] KEHC 2974 (KLR)
Parties
Plaintiff: Samson Mbaabu Nkarichia; Defendant: Sacinta Kinya Gituma
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
27 September 2017
Case Number
Originating Summons 37 of 2016
Procedural Posture
Originating Summons / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Judges
LN Mbugua
Legal Topics
Adverse Possession, Limitation Periods, Preliminary Objection
Source Language
English
Land and Property Civil Procedure Adverse Possession Limitation Periods Preliminary Objection

Case Brief

Summary, issues, holding and outcome

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Parties

Samson Mbaabu Nkarichia

Plaintiff

Sacinta Kinya Gituma

Defendant

Procedural Posture

Originating Summons / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the preliminary objection raises a pure point of law suitable for summary determination.
  2. 2 Whether the period for adverse possession should be calculated from 1992 or from 19/10/2015.

Ratio Decidendi

The court held that the preliminary objection did not raise a pure point of law because the determination of when time began to run for purposes of adverse possession—whether from 1992 as claimed by the plaintiff or from 19/10/2015 as claimed by the defendant—was a factual issue requiring evidence. As such, the matter could not be resolved at the preliminary stage, and the objection was dismissed with costs to the plaintiff.

Court Disposition

preliminary objection dismissed

Orders

  • The preliminary objection is dismissed with costs to the plaintiff.