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ELCDismissedEnvironment and Land Case Civil Suit 94 of 2021

Akasha (Suing as administrator of the Estate of Karima Akasha Abdalla) v Abeid & another

Environment and Land Court
28 March 2023
4,606 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st and 2nd Defendants moved the Environment and Land Court at Mombasa by a Notice of Motion under Section 3A of the Civil Procedure Act and Order 2 Rule 15(1) of the Civil Procedure Rules, together with a preliminary objection, seeking striking out of the Plaintiff's Plaint on the ground that the suit, founded on a sale agreement dated 4th August 2014 over L.R. No. Mombasa/Block XIII/65, was time-barred under Section 4 of the Limitation of Actions Act, the suit having been filed on 21st May 2021. The Plaintiff opposed, contending that payments continued up to early 2021 and that text messages about payments were exchanged, so the cause of action accrued only when the Defendants stopped paying in 2021. The court framed five issues. Applying Mukisa Biscuit, it held the preliminary objection was properly taken as a point of law going to jurisdiction. However, on the merits it accepted that the cause of action was the breach of the agreement, which accrued in 2021 when payments ceased; the six-year limitation period therefore ran to 2027 and the suit was not time-barred. On striking out, applying authorities that striking out is draconian and sparingly exercised where triable issues exist, the court found the claim for breach of agreement clearly pleaded in the Plaint and refused to strike it out. The application was dismissed in its entirety, the preliminary objection overruled, costs awarded to the Plaintiff, and the suit directed to proceed to hearing within 180 days, with a pre-trial mention on 22nd May 2023.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the Notice of Motion application dated 13th April, 2022 had any merit
  3. 3.Whether the suit is barred by the provisions of the Limitation of Actions Act, Cap. 22
  4. 4.Whether the suit should be struck out under Order 2 Rule 15 of the Civil Procedure Rules, 2010
  5. 5.Who will bear the costs of the objection and the application

Key legal issues

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01

Validity of the preliminary objection on limitation

Holding

The objection was properly before the court as a pure point of law going to jurisdiction

Reasoning

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.

p. 6
02

When the cause of action accrued for limitation purposes

Holding

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

Reasoning

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.

p. 7
03

Whether the Plaint should be struck out under Order 2 Rule 15

Holding

The application to strike out failed because the claim was clearly pleaded and raised triable issues

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 13th April, 2022 is found to lack merit and is dismissed in its entirety
  2. 2.The Notice of Preliminary Objection is found to lack merit and is overruled in its entirety
  3. 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. 4.Costs of the application awarded to the Plaintiff/Respondent, to be borne by the 1st and 2nd Defendants/Applicants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 9

Costs

Costs of the application awarded to the Plaintiff/Respondent, to be borne by the 1st and 2nd Defendants/Applicants

Quotable passages

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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.
p. 9Disposition - dismissal of the striking-out application
That the Notice of Preliminary objection be and is hereby found to lack merit and hence is overruled in its entirety.
p. 9Disposition - overruling of the preliminary objection
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.
Accrual of cause of action in contract
If the suit is statute barred on account of limitation, then the court lacks the jurisdiction to entertain the same.
p. 6Limitation and jurisdiction
That the cost of this application is awarded to the Plaintiff/Respondent to be borne by the 1st and 2nd Defendants/Applicants.
p. 9Costs order

Issues in the judgment

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minor

Date of the application inconsistently stated

minor

Date of the sale agreement inconsistently stated

minor

Month payments ceased inconsistently stated

minor

Filing date of suit inconsistently stated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.