[2017] KEHC 528 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NUMBER 223 OF 1993

BHOGALS GARAGE LIMITED..............................................PLAINTIFF

-VERSUS-

1. SHUKHWINDER SINGH JUTLEY PURPORTING TO TRADE AS

SUKAKO TRANSPORTERS LIMITED AND/OR SUKAKO LIMITED

2. MATHEW NJOROGEBOTH T/A SUKAKO

3. JOGINDER KAUR JUTLEY W/O TRANSPORTERS

JASWINDER SINGH JUTLEY ........................................DEFENDANTS

JUDGMENT

1. Bhogals Garage Limited, by its Amended plaint dated 2nd December 1996 sued the defendants jointly and severally for sum of Kshs.1,168,805/80 being the unpaid balance for services rendered in respect of their motor vehicle Registration Number KXY 447 and a balance of purchase price of the same and interest on account of 2% per annum upto the 31st March 1993 and further interest up to settlement of the debt.

2. The defendants in their joint defence dated 15th January 1997 denied all the plaintiffs claims and sought dismissal of the suit.

3. The plaintiffs evidence was taken before Hon. Justice Kimaru upto the 1st November 2007. Justice Mshilla took the defendant's evidence (DW1) but left the station before preparing judgment. Upon taking directions on further hearing of the case, parties agreed that this court may proceed to prepare the judgment upon the evidence on record. Parties filed their respective submissions by their counsel.

4. By the Amended plaint dated 15th January 1997, an issue for the suit being time barred by Limitation of Actions Act was pleaded. I have perused the pleadings as well as the proceedings. The issue of limitation in my view ought to have been taken up and determined before the case could proceed to full hearing. This was not done.

I shall determine the said issue on the onset.

Both parties have submitted on the same in their respective written submissions.

5. The defendants claim is that the suit is time barred(issue No. 1) under Cap 22 Laws of Kenya. Citing Section 4 thereof it was submitted that the claim having arisen from breach of a contract entered into in 1987, it was time barred 6 years thereafter.

On the other hand the plaintiff contends that the contract between the plaintiff and the defendant was continuous starting from 1987 and was terminated in 1993 where of all service charges were paid upto 1993 when there was a default, and that is when the cause of action arose, the date of default.

Contrary to their submissions, the defendants submit that a calculation of the suit period ought to start as soon as there is a breach of contract.

What I have to determine is when the cause of action accrued – whether at the date of the contract, or when a default occurred, in the running account between the two parties. See Civil Appeal No.169/2009 Kiamokama Tea Factory Co. Ltd -vs- Joshua Nyakori(2015) e KLR.

Section 4 Cap 22 reads:

4(1) The following actions may not be brought after the end of six years from the date on which the cause of action arose.

(a) Actions founded on contract

6. In my considered view, it is upon breach of the terms of the contract that the course of action arises, and time starts running from then, not when the contract was entered into, but when there is a default. My view is battressed by the holdings in not only the earlier authority I have cited but also in the following, Commercial Civil Case No. 16 of 2004(Judgment delivered on the 24th November 2011 where the judge clearly stated when a breach of contract occurs and when time begins to run in breach of contract – Thomas Kibe & 114 Others -vs- K.P.A.(2011) e KLR.

7. Quoting from the book entitled: “Limitation Act 7th Edition 1997” by V.R. Manohar, the learned author stated:

“In the case of continuing breach of contract or in the case of continuing tort, a fresh period of limitation begins to run at every moment and time during which the breach or tort as the case maybe, continues.”

Further, in the book “Arsons Law of Contract 28th Edition by J. Beatson, it is stated:

“A distinction is however drawn between a once and for all breach and a continuing breach ---

In the case of continuing breach, the promised duty is considered as persisting and as being forever renewed until that which has been promised has been one a further breach arises every successive moment of time during which the state or conditions to promised.”

7. I need not go further but to come to a finding that time started running when there occurred a breach of contract that being the 31st March 1993. The suit was filed soon thereafter and Amended on the 27th November 1996 which brings the cause of action within the limitation period stated under Section 4(1) of the Limitations of Action Act,being six years.

8. THE PLAINTIFF'S CASE WAS URGED BY ONE DAVID KARIUKI WAWERU AS PW1. He was the plaintiff's accountant at the relevant period.

His evidence was that the plaintiff had a running business relationship with the defendant from 7th January 1987 when the subject vehicle was bought and a balance of Kshs.303,000/= remained unpaid for the total value of Kshs.909,400/= and a sum of Kshs.606,000/= paid. The plaintiff too were servicing the vehicle and the charges being paid in bits, and interest was payable though rates not shown on the invoices, at a rate of 2. 5% on overdue accounts.

9. It was his testimony that the balance of the purchase price of Kshs.303,400/=was not paid nor were and repair charges of Kshs.37,178/60 and interest of Kshs.193,336/10 paid. That the vehicle was bought through a Hire purchase agreement.

The Hire purchase Agreement between the Defendants and National Bank of Kenya Limited entered into on the 9th January 1987 was produced and a running account from 7th January 1987 upto 30th September 1987 showing an outstanding sum of Kshs.758,964/70, together with invoices in support of the said sum (PExt 2 a bundle).

He further told the court that the deposit of Kshs.303,400/= for the vehicle was not paid, but admitted having mislead the Financier – National Industrial Credit Bank(NIC) – that it had been paid, as shown in the Hire purchase agreement (DMFI. 1).

10. THE DEFENDANT'S CASE WAS URGED BY ONE SUKWINDER SINGH JUTLEY, A DIRECTOROF THE DEFENDANT SUKAKO TRANSPORTERS LTD.

He confirmed having bought the vehicle Registration Number KXY 447 Lorry from the plaintiff in 1987 for a sum of Kshs.909,400 by Hire Purchase vide NIC Bank and paid a deposit of Kshs.303, 400/= in cash and by a cheque to NIC by a cheque to Kshs.606,000/= on the 7th January 1987 - “DExt 1. ”

He also produced a payment schedule to NIC - “DExt 2. ” and showing that the loan was paid off. Shown PExt B1, he confirmed that no money was outstanding to either the plaintiff or NIC. He denied the claim raised by the plaintiff in its totality, but clarified that the company used the names Sukako Transporters and Sukako Limited interchangeably.

11. ANALYSIS OF EVIDENCE, SUBMISSIONS, AND FINDINGS

What comes out clearly from the evidence is that the plaintiff did sell the vehicle registration No. KXY 447 lorry to the defendant vide a Hire purchase agreement dated 9th January 1987(PExt 1), executed by both parties.

I have perused the agreement. It states the purchase price of the vehicle as Kshs.909,400/= and a deposit of Kshs.303,400/= was paid in cash leaving a balance of Kshs.606,000/=. The vehicle was then delivered to the defendant M/S Sukako Transporters. The financier is shown as NIC and it was admitted by all the disputant parties that NIC was fully paid the balance of Kshs.606,000/=.

12. Parties are bound by their contract. A court cannot rewrite the contract for them. NIC is not a party to the case before this court.

See Hassan Zubeidi -vs- Patrick Mwangangi & Another (2014) e KLRand R -VS- HIV & Aids Tribunal & Another Exparte Dyncort (2015) e KLR.

By the Hire purchase agreement that was duly executed and revenue stamped, there is no doubt that the purchase price for the vehicle was fully paid Kshs.606,000/= which was acknowledged by both the plaintiff and the defendant.

No evidence was adduced that the defendant did not pay the deposit of Kshs.303,400/=. The defendant having admitted that it mislead the financier that the deposit had been paid, and that “misleading information” entered into the Hire Purchase Agreement, then it only has itself to blame. It is my finding that the deposit was paid, as well as the balance.

13. On the matter of the allegedly agreed interest rates on any outstanding sum at the rate 2. 5%, there is no evidence on the agreement the same having not expressly or otherwise agreed. This is clearly not indicated in the invoices nor in any other documents. It is the plaintiff's word against the defendants. Proof of any allegation of fact is essential. See Section 108-109 Evidence Act,and the person so alleging has the burden of proof.

14. The evidence adduced by the plaintiff's accountant falls short of proof of the claim in its totality. The principal sum of Kshs.1,168,805/= has not been proved by any tangible evidence. This goes for the claim on interest.

15. A case belongs to the plaintiff and it behoves it to bring all available evidence to prove its case. This in my considered opinion has not been done to the required standard, on a balance of probability. That burden of proof lies with the plaintiff. See D.T.Dobie & Company (K) -vs- Wanyonyi Wafula Chebukati (2014) e KLR.

16. The upshot of the above is that the plaintiff's suit is hereby dismissed with costs to the defendant namely Sukako Transporters Ltd.

Dated and Signed this 23rd Day of October 2017.

J.N. MULWA

JUDGE

Delivered this 7th Day of November 2017.

R. LAGAT KORIR

JUDGE