Gilbert Kimutai Chebet (suing as administrator and or personal representative of the Estate of Nicholas Chebet Kitum) (deceased) has sued Alice Salate in respect of title No. Nakuru/Sururu/1777 that was owned by the deceased. According to the plaintiff, the deceased and family entered the land in 1997 and was charge in 2004 in Nakuru CMCR No. 2544 of 2004 and was found guilty of the offence.
That in 2005, the plaintiff initiated a suit thus Nakuru CMCC No. 1120 of 2005 against the defendant but the same was dismissed for want of prosecution. The suit revolves on a cause of action known as Nuisance and another cause of action known as Trespass.
The defendant has filed a preliminary objection that:
1. This Honourable court is bereft of Jurisdiction to hear and determine this matter since suit before it is statute barred having been filed after 12 years from the date when the cause of action is alleged to have occurred and thus offends the provisions of Section 7 as read with Sections 37 and 38 of the Limitations of Actions Act Cap 22 Laws of Kenya.
2. That the plaintiff’s suit is totally fatally defective, incompetent, bad in law, misconceived and an abuse of this Honourable court’s process, having been filed after 16 years thus offending the provisions of Section 7 as read with Sections 37 and 38 of the Limitations of Actions Act Cap 22 Laws of Kenya.
3. That the suit herein offends the provisions of Rule 14 of the Fifth Schedule to the Law of Succession Act Cap 160 Laws of Kenya and as such the defendant in improperly joined/sued as a party to the suit.
4. That the instant claim is a non-starter, devoid of any merit and a gross abuse of the court process and consequently, ought to be dismissed with costs awarded to the defendant.
I have considered the rival submissions and do find as a fact that the cause of action accrued in 1997 when the defendant entered the suit property. From 1997 to date is 27 years. Section 7 of the Limitation of Actions Action provides time for limitations a clear of land. The Section provides:
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
The plaintiff himself has pleaded that the defendant entered in 1997 and therefore the facts are clear that the defendant entered the suit land in 1997 and that the suit was brought to court in 2024. It is clear that the suit has been brought 27 years after the accrual of the cause of action.
In Mukisa Biscuits Manufacturing Company Ltd –Vs- West End Distributors [1969] EA 696 (as cited with approval in Edward Moonge Langusuranga –Vs- James Lanaiyara & another [2019] eKLR [2019] Sir Charles Newbold, P. stated as follows:
“a preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bund by the contract giving rise to the suit to refer the dispute to arbitration.
Law J. A stated as follows in the same ……
“ a preliminary objection is in the nature of what used to be a demurrer. It raises 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 if what is sought is the exercise of juridical decision. The improper raising of points by way or preliminary objection does nothing and unnecessary increase cost and, on occasion, confuse the issues. This improper practice should stop”.
The facts in this case are crystal clear that this suit is filed 27 years after the cause of action accrued. The same is stale and therefore I do strike it out with costs. File is closed.
Ruling dated, signed and delivered electronically this 26th day of September 2024.
That in 2005, the plaintiff initiated a suit thus Nakuru CMCC No. 1120 of 2005 against the defendant but the same was dismissed for want of prosecution. The suit revolves on a cause of action known as Nuisance and another cause of action known as Trespass.
The defendant has filed a preliminary objection that:
1. This Honourable court is bereft of Jurisdiction to hear and determine this matter since suit before it is statute barred having been filed after 12 years from the date when the cause of action is alleged to have occurred and thus offends the provisions of Section 7 as read with Sections 37 and 38 of the Limitations of Actions Act Cap 22 Laws of Kenya.
2. That the plaintiff’s suit is totally fatally defective, incompetent, bad in law, misconceived and an abuse of this Honourable court’s process, having been filed after 16 years thus offending the provisions of Section 7 as read with Sections 37 and 38 of the Limitations of Actions Act Cap 22 Laws of Kenya.
3. That the suit herein offends the provisions of Rule 14 of the Fifth Schedule to the Law of Succession Act Cap 160 Laws of Kenya and as such the defendant in improperly joined/sued as a party to the suit.
4. That the instant claim is a non-starter, devoid of any merit and a gross abuse of the court process and consequently, ought to be dismissed with costs awarded to the defendant.
I have considered the rival submissions and do find as a fact that the cause of action accrued in 1997 when the defendant entered the suit property. From 1997 to date is 27 years. Section 7 of the Limitation of Actions Action provides time for limitations a clear of land. The Section provides:
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
The plaintiff himself has pleaded that the defendant entered in 1997 and therefore the facts are clear that the defendant entered the suit land in 1997 and that the suit was brought to court in 2024. It is clear that the suit has been brought 27 years after the accrual of the cause of action.
In Mukisa Biscuits Manufacturing Company Ltd –Vs- West End Distributors [1969] EA 696 (as cited with approval in Edward Moonge Langusuranga –Vs- James Lanaiyara & another [2019] eKLR [2019] Sir Charles Newbold, P. stated as follows:
“a preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bund by the contract giving rise to the suit to refer the dispute to arbitration.
Law J. A stated as follows in the same ……
“ a preliminary objection is in the nature of what used to be a demurrer. It raises 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 if what is sought is the exercise of juridical decision. The improper raising of points by way or preliminary objection does nothing and unnecessary increase cost and, on occasion, confuse the issues. This improper practice should stop”.
The facts in this case are crystal clear that this suit is filed 27 years after the cause of action accrued. The same is stale and therefore I do strike it out with costs. File is closed.
Ruling dated, signed and delivered electronically this 26th day of September 2024.