Akasha (Suing as administrator of the Estate of Karima Akasha Abdalla) v Abeid & another
The bottom line
#A Mombasa court ruled a 2021 land payment dispute was not too late to sue, because the six-year countdown starts when payments stopped, not when the 2014 agreement was signed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection raised by the 1st and 2nd Defendants/Applicants met the threshold of such objections based on law and precedents
- 2.Whether the Notice of Motion application dated 13th April, 2022 had any merit
- 3.Whether the suit is barred by the provisions of the Limitation of Actions Act, Cap. 22
- 4.Whether the suit should be struck out under Order 2 Rule 15 of the Civil Procedure Rules, 2010
- 5.Who will bear the costs of the objection and the application
Key legal issues
#Validity of the preliminary objection on limitation
The objection was properly before the court as a pure point of law going to jurisdiction
Applying Mukisa Biscuit, the court held that a plea of limitation is a point of law that may dispose of the suit and may be raised at any stage. Because a statute-barred suit would oust the court's jurisdiction, the objection was validly taken without need for evidence.
When the cause of action accrued for limitation purposes
The cause of action accrued in 2021 when the Defendants stopped making payments, so the suit filed in 2021 was within the six-year period
The court accepted the Plaintiff's evidence that payments continued up to early 2021 and that text messages about payments were exchanged. Relying on the principle that an action arises at the date of breach, time began to run in 2021 and would end in 2027, so the suit was not time-barred.
Whether the Plaint should be struck out under Order 2 Rule 15
The application to strike out failed because the claim was clearly pleaded and raised triable issues
The court reviewed authorities holding striking out to be draconian and sparingly exercised. Paragraphs 4 and 5 of the Plaint clearly pleaded a sale agreement, payments made, and the balance outstanding, disclosing a claim for breach of agreement that should proceed to trial.
Legal principles established
#- A preliminary objection must be on a point of law founded on facts not in dispute; if evidence is required, it is unsustainable
- A suit barred by limitation deprives the court of jurisdiction to entertain it
- For breach of contract, limitation runs from the date of breach, not from the date of the agreement
- Striking out pleadings is a draconian remedy to be exercised sparingly where a triable issue exists
Court orders
#- 1.The Notice of Motion application dated 13th April, 2022 is found to lack merit and is dismissed in its entirety
- 2.The Notice of Preliminary Objection is found to lack merit and is overruled in its entirety
- 3.The suit to be set down for hearing and determination within 180 days from delivery of the ruling commencing 5th October, 2023, with a mention on 22nd May, 2023 for Pre-Trial Conference and directions under Order 11
- 4.Costs of the application awarded to the Plaintiff/Respondent, to be borne by the 1st and 2nd Defendants/Applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning land known as L.R. No. Mombasa/Block XIII/65
Relief refused
#Striking out of the Plaint and all pleadings filed by the Plaintiff
The claim for breach of agreement was clearly spelt out in the Plaint and triable issues existed; the suit was held not time-barred as the cause of action accrued in 2021
Costs
Costs of the application awarded to the Plaintiff/Respondent, to be borne by the 1st and 2nd Defendants/Applicants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 13th April, 2022 is found to lack merit and is hereby dismissed in its entirety.
That the Notice of Preliminary objection be and is hereby found to lack merit and hence is overruled in its entirety.
The Court finds and hold that the cause of action being the breach of agreement which accrued in the year 2021. In my view, that is when the time began to run.
If the suit is statute barred on account of limitation, then the court lacks the jurisdiction to entertain the same.
That the cost of this application is awarded to the Plaintiff/Respondent to be borne by the 1st and 2nd Defendants/Applicants.
Issues in the judgment
#Date of the application inconsistently stated
Date of the sale agreement inconsistently stated
Month payments ceased inconsistently stated
Filing date of suit inconsistently stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akasha (Suing as administrator of the Estate of Karima Akasha Abdalla) v Abeid & another", Case Analysis (2023). Environment and Land Case Civil Suit 94 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16797/eng@2023-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.