[1993] KEHC 6 (KLR)

[1993] KEHC 6 (KLR)

The court found that the preliminary objections raised by the appellant—limitation and jurisdiction—were proper points of law to be raised at the outset. However, on the facts and pleadings, it was not clear when the respondent became aware of the alleged encroachment or when the right to recover possession accrued, making it inappropriate to determine limitation as a preliminary issue. The court also held that, although the land was situated in Bungoma District, the Senior Resident Magistrate's Court at Kitale had jurisdiction throughout Kenya, and it was not appropriate to dispose of the suit on a preliminary jurisdictional objection at that stage. Accordingly, the dismissal of the...

Citation
[1993] KEHC 6 (KLR)
Parties
Appellant: Wasike; Respondent: Khisa
Court
High Court
Court Station
High Court at Eldoret
Jurisdiction
Kenya
Judgment Date
18 March 1993
Case Number
Civil Appeal 34 of 1992
Procedural Posture
Civil Appeal / Judgment on Appeal From Preliminary Objection Ruling
Outcome
Appeal dismissed. Suit remitted for hearing on merits. Costs to respondent.
Legal Topics
Preliminary Objection, Limitation of Actions, Jurisdiction of Court, Adverse Possession, Boundary Disputes
Source Language
English
Civil Procedure Land and Property Preliminary Objection Limitation of Actions Jurisdiction of Court Adverse Possession Boundary Disputes

Case Brief

Summary, issues, holding and outcome

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Parties

Wasike

Appellant

Khisa

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal From Preliminary Objection Ruling

Legal Issues

  1. 1 Whether the respondent's suit was time barred under the Limitation of Actions Act.
  2. 2 Whether the Senior Resident Magistrate's Court at Kitale had jurisdiction to hear the suit concerning land situated in Bungoma District.
  3. 3 Whether the preliminary objections raised were proper points of law capable of disposing of the suit at that stage.

Ratio Decidendi

The court found that the preliminary objections raised by the appellant—limitation and jurisdiction—were proper points of law to be raised at the outset. However, on the facts and pleadings, it was not clear when the respondent became aware of the alleged encroachment or when the right to recover possession accrued, making it inappropriate to determine limitation as a preliminary issue. The court also held that, although the land was situated in Bungoma District, the Senior Resident Magistrate's Court at Kitale had jurisdiction throughout Kenya, and it was not appropriate to dispose of the suit on a preliminary jurisdictional objection at that stage. Accordingly, the dismissal of the...

Court Disposition

Appeal dismissed. Suit remitted for hearing on merits. Costs to respondent.

Orders

  • The appeal is dismissed.
  • The suit is remitted back to the Court of the Senior Resident Magistrate at Kitale for hearing on merits and final disposal.