Naeku & 2 others v Narok & 2 others
The bottom line
#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 suit is statute barred by the Limitations of Actions Act
- 2.Whether the preliminary objection dated October 25, 2022 is a pure point of law that can dispose of the suit
Key legal issues
#Whether the preliminary objection was a pure point of law
The objection was validly taken on limitation as a point of law, but its determination required resolution of disputed facts, so it could not succeed at the preliminary stage
The court accepted that limitation touches jurisdiction and is a valid preliminary point. However, the 2nd defendant's submissions rested on an alleged 1982 rectification agreement and consent not pleaded in the plaint, which pleaded fraud discovered in 2016 upon applying for registration of the grant. The disparity in facts required a full hearing.
Whether the suit is time barred under Sections 4(1) and 7 of the Limitation of Actions Act
Not determined at this stage; the objection was dismissed because the date of accrual of the cause of action was a disputed factual question
The 2nd defendant argued the cause of action accrued on November 2, 1982 upon registration of the rectification consent, invoking the 6-year and 12-year periods. The plaint, however, pleaded fraudulent alteration discovered in 2016 when the plaintiffs applied for registration of the grant, leaving accrual contested.
Legal principles established
#- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained
- Where facts are contested, the issue falls outside the ambit of a preliminary objection
- Limitation goes to the jurisdiction of the court and may properly be raised as a preliminary point
Court orders
#- 1.The notice of preliminary objection dated October 25, 2022 is dismissed
- 2.Costs to abide the outcome of the substantive suit
- 3.Mention on June 13, 2023 before the Deputy Registrar to confirm compliance with Order 11 of the Civil Procedure Rules and to take a hearing date
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over land disputes
Relief refused
#Striking out of the suit with costs to the 2nd defendant on grounds of limitation
The preliminary objection disclosed disputed facts, so it could not be determined as a pure point of law
Costs
Costs to abide the outcome of the substantive suit.
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.
Arising from the above, the notice of preliminary objection dated October 25, 2022 lacks merit and the same is hereby dismissed. Costs to abide the outcome of the substantive suit.
Where there is such a disparity in facts, the court can only refrain from upholding the preliminary objection on such grounds. There is need for parties to present their evidence against the facts to enable this court arrive at a just determination.
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 had to be ascertained or if what is sought is the exercise of judicial discretion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naeku & 2 others v Narok & 2 others", Case Analysis (2023). Environment & Land Case 30 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17778/eng@2023-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.