Ng'ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on limitation was a pure point of law suitable for summary determination
The objection was dismissed; although limitation is a point of law, the pleadings do not show when the cause of action arose, and the plaintiffs allege fraud, so the issue requires evidence at trial.
The court adopted the Mukisa Biscuit definition of a preliminary objection and accepted that limitation touches jurisdiction. However, it found the pleadings unclear as to when the cause of action accrued, and the plaintiffs pleaded fraud, engaging section 26 of the Limitation of Actions Act on discovery of fraud. Following Sichuan Huashi, Oruta and Divecon, limitation should be framed as an issue for trial and decided on evidence, not struck out summarily.
Legal principles established
#- A preliminary objection cannot be sustained where the issue raised requires ascertainment of facts or evidence at trial
- The defence of limitation of time is a matter for determination at the trial on evidence, not summarily by preliminary objection
Court orders
#- 1.The defendants' preliminary objection dated 25/01/2023 is dismissed with costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); not expressly stated in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng'ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others", Case Analysis (2023). Environment & Land Case 38 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16692/eng@2023-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.