Kituku & another (Suing as the Personal Representatives of the Estate of the Late William Kituku Ndolo) v Mwangangi & 15 others (Environment & Land Case E101 of 2021) [2024] KEELC 6954 (KLR)
The bottom line
#A Kenyan land court threw out a defendant's attempt to dismiss a suit on time limitations because the objection relied on disputed facts, not pure law.
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 is a proper preliminary objection raising pure point of law.
- 2.Whether the objection is merited.
Key legal issues
#Whether the objection based on Sections 7 and 9 of the Limitation of Actions Act was a proper preliminary objection on a pure point of law
It was not, because it depended on disputed and unpleaded facts, particularly when the plaintiffs acquired knowledge of the subdivision
The 15th defendant alleged the plaintiffs knew of the 2008 subdivision, but the plaint made no such averment and the source of the allegation was not disclosed. Even knowledge of the year of subdivision would not necessarily establish knowledge of the facts on that date. The objection therefore required ascertainment of facts, disqualifying it as a preliminary objection under the Mukisa Biscuits test.
Whether the court could consider the new grounds (probate jurisdiction and Section 16 of the Limitation of Actions Act) raised only in submissions
No; submissions cannot expand the grounds of a preliminary objection beyond what is pleaded
The objection as filed raised only Sections 7 and 9 of the Limitation of Actions Act. The arguments on probate matters and Section 16 appeared for the first time in submissions. Since submissions are persuasive arguments and not substitutes for pleadings, allowing them would amount to trial by ambush and an unfair trial. The court declined to address those new issues.
Legal principles established
#- Submissions cannot introduce new issues not raised in the pleadings or objection; a party cannot use submissions to go on a frolic of their own.
- A proper preliminary objection must rest on undisputed facts and raise a pure point of law.
Court orders
#- 1.The preliminary objection dated 26th February 2024 filed by the 15th defendant is dismissed
- 2.Costs of the preliminary objection to the plaintiff
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 (statutory, not expressly cited in the extract)
Relief refused
#15th defendant's application for dismissal of the plaintiffs' suit on grounds of limitation and jurisdiction
The objection was founded on contested and unproved facts, notably the allegation that the plaintiffs knew of the 2008 subdivision, and so was not a pure point of law
Costs
Preliminary objection dismissed with costs to the plaintiff.
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.
The upshot is that I find no merit in the preliminary objection which I dismiss with costs to the plaintifi.
A party cannot use submissions to go on a frolic of their own, because submissions must be restricted to the issues raised in the pleadings, otherwise, that would result in trial by ambush which is not a fair trial.
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 has to be ascertained or if what is sought is the exercise of judicial discretion.
Issues in the judgment
#Grounds argued in submissions (lack of probate jurisdiction; Section 16 of the Limitation of Actions Act) were not in the filed preliminary objection; court declined to consider them
Case name and citation of Kober v Korkoren appear irregularly duplicated ([2021] [2023] KEELC 18168 KLR)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kituku & another (Suing as the Personal Representatives of the Estate of the Late William Kituku Ndolo) v Mwangangi & 15 others (Environment & Land Case E101 of 2021) [2024] KEELC 6954 (KLR)", Case Analysis (2024). Not stated in judgment (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6954/eng@2024-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.