Olado v County Government of Busia (Environment & Land Case 70 of 2018) [2025] KEELC 259 (KLR)

The suit land did not exist in 1977 or the 1980s when the defendant claims the slaughter house land was earmarked and built. The title deed issued on 2nd July 2018 and the suit was filed on 6th August 2018. Further, the claim borders on trespass to land, a continuing tort for which there is no limitation of time, each continuance of the trespass founding a fresh cause of action.

Section 3(1) bars tort proceedings against Government or a local authority after twelve months. The cause of action could only accrue when the suit land came into existence on 2nd July 2018, and the suit was filed within a month. Since the claim is founded on a continuing trespass, it cannot be defeated by that provision.

Section 4(2) bars tort actions after three years. The cause of action accrued on 2nd July 2018 and the suit was filed within the period. In any event, Section 27 leave extends time only for negligence, nuisance or breach of duty claims involving personal injuries, which this claim is not.

A county government is a body corporate capable of being sued in its own name. The Court of Appeal in Council of Governors v Senate held that failure to comply with Section 13A does not render a suit incompetent, a decision binding on this court. The decision in David Njenga Ngugi also held the word 'shall' in Section 13A to be directory, so non-compliance cannot hamper the right to sue.

Order 2 Rule 15(1) empowers the court to strike out pleadings, but the power must be exercised cautiously and without delving into merits. The defendant's submissions addressed evidence going to the merits, which is beyond the scope of such an application. So long as a pleading raises triable issues, the suit must proceed, and denying a subject a hearing should be the last resort of the court.