Mwatela & another v County Government of Mombasa
The bottom line
#Mombasa's Environment and Land Court refused to throw out a land sale claim against the county, ruling the time-limit defence needed facts to be tested at trial.
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 dated 22nd October, 2021 by the Defendant herein meets the standards of an objection based on Law and precedents
- 2.Whether suit is statutorily barred by the Limitation of action or time
- 3.Who will bear the Costs of the objection
Key legal issues
#Whether the preliminary objection met the Mukisa Biscuits threshold
The objection raised serious and pure issues of law (jurisdiction and limitation) and was properly filed
Applying Mukisa Biscuits and Attorney General v Andrew Mwaura Githinji, the court found jurisdiction and limitation are classic pure points of law that can be raised at any time before final conclusion of the case, and the objection was properly before the court.
Whether the suit was time-barred under Section 3(2) of the Public Authorities Limitation Act
The objection failed because determining when the cause of action accrued would require a mini-trial on facts, so it was not a pure point of law
The court noted the parties' dispute over when breach occurred (failure to pay deposit in 2017 versus failure to pay despite demand in 2019) and held that ascertaining the accrual date requires evidence; such factual investigation disqualifies the objection as a preliminary objection. The court also invoked its inherent powers under the ELC Act, Land Registration Act, Land Act and Article 159 to decline the objection.
Costs of the objection
Costs were ordered to be in the cause given the matter proceeds to full trial
Although costs follow the event under Section 27(1) of the Civil Procedure Act and the objection was unsuccessful, the court considered it fair and in the interest of natural justice, since the matter is still proceeding to full trial, that costs be in the cause.
Legal principles established
#- A preliminary objection that requires investigation of facts ceases to be a preliminary objection
- A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct
Court orders
#- 1.The Notice of Preliminary Objection dated 22nd October, 2021 by the Defendant was found to have no merit and was dismissed
- 2.The suit to be set down for full trial and determination within 180 days from delivery of the Ruling commencing on 30th October, 2023, with a mention on 7th June, 2023 for Pre-trial Conference and directions under Order 11 of the Civil Procedure Rules, 2010
- 3.Costs will be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 159(1) and (2) of the Constitution of Kenya, 2010; Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011
Relief refused
#Defendant's prayer for dismissal of the Plaintiffs' suit as time-barred under Section 3(2) of the Public Authorities Limitation Act
The court held the objection required investigation of facts as to when the cause of action arose and was therefore not a pure point of law
Costs
Costs will be in the cause
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 Preliminary objection dated 22nd October, 2021 by the Defendant found to have no merit and thus be and is hereby dismissed.
THAT costs will be in the cause.
The moment a court is invited to conduct a mini-trial on facts to establish whether a preliminary objection is valid, then that preliminary objection itself ceases to be a preliminary objection.
This cannot be regarded as a pure point of law as it requires investigation of some facts.
It is now well established that the issue of costs is at the discretion of the Court.
Issues in the judgment
#Conflicting findings on when the cause of action accrued
Same contradiction on accrual date
Inconsistent dates for the preliminary objection
Suit said to be within three years despite 2017 accrual and 2021 filing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwatela & another v County Government of Mombasa", Case Analysis (2023). Environment & Land Case 185 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17332/eng@2023-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.