[2008] KEHC 3765 (KLR)
The court found that the plaint disclosed claims based on both tort and contract. While the tortious claim was statute-barred under section 4(2) of the Limitation of Actions Act, the contractual claim was not, as it was filed within the six-year limitation period prescribed by section 4(1) of the Act. Since the suit...
Source-derived case information.
- Citation
- [2008] KEHC 3765 (KLR)
- Parties
- Plaintiff: Boli Festus Andrew Sio; Defendant: Board of Governors of St Mary’s School
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1085 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed
- Legal Topics
- Limitation of Actions, Strike Out Proceedings, Tort Claims, Contractual Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boli Festus Andrew Sio
Plaintiff
Board of Governors of St Mary’s School
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint discloses a reasonable cause of action.
- 2 Whether the suit is statute-barred under the Limitation of Actions Act, Cap. 22, for tort and/or contract claims.
Ratio Decidendi
The court found that the plaint disclosed claims based on both tort and contract. While the tortious claim was statute-barred under section 4(2) of the Limitation of Actions Act, the contractual claim was not, as it was filed within the six-year limitation period prescribed by section 4(1) of the Act. Since the suit was filed on 12th October, 2006, before the expiry of the six-year period from the date the cause of action arose (21st November, 2000), the suit was not wholly statute-barred. Therefore, the application to strike out the plaint and dismiss the suit for want of a reasonable cause of action could not succeed. The application was dismissed with costs to the Plaintiff.
Court Disposition
application dismissed
Orders
- The Defendant's application to strike out the plaint is dismissed.
- Costs of the application awarded to the Plaintiff.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1085 of 2006
BOLI FESTUS ANDREW SIO ……………………..............……..PLAINTIFF
V E R S U S
BOARD OF GOVERNORS OF ST MARY’S SCHOOL……..DEFENDANT
R U L I N G
This is an application (chamber summons dated 16th February, 2007) by the Defendant essentially under Order 6, rule 13(1)(a) of the Civil Procedure Rules (the Rules), for orders to strike out the plaint dated 11th October, 2006 and to dismiss the suit upon the ground that no reasonable cause of action is disclosed. The same is opposed by the Plaintiff.
I have considered the submissions of the learned counsels appearing, including the one case cited. It is submitted for the Defendant that the cause of action, which arose on 21st November, 2000, is founded on tort. The suit should thus have been filed, under section 4(2) of the Limitation of Actions Act, Cap. 22, within 3 years, that is, on or before 20th November, 2003. The suit was filed on 12th October, 2006, nearly three years out of time, and without extension of time by the court.
For the Plaintiff it is submitted that the cause of action is based on both tort and contract as pleaded in paragraphs 4, 7 and 8 of the plaint; therefore the suit is not statute-barred.
I have looked at the plaint. It does appear that the claim is based on both tort and contract. See paragraphs 4, 5, 6, 7 and 8 of the plaint. Inasmuch as the suit is based on tort, it is clearly statute-barred under section 4(2) of Cap. 22 aforesaid and the same cannot be sustained. But inasmuch as it is based upon contract, the period of limitation under section 4(1) of Cap. 22 is six years. That means that the suit is good if filed on or before 20th November, 2006. It was filed on 12th October, 2006.
I must therefore refuse the application. It is hereby dismissed with costs to the Plaintiff.
DATED AT NAIROBI THIS 22ND DAY OF JANUARY, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 25TH DAY OF JANUARY, 2008