[2022] KEHC 15466 (KLR)

Chege & another v Lukenya Ranching & Farming Co-operative Society Ltd & another (Civil Case 5 of 2022) [2022] KEHC 15466 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15466 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Case 5 of 2022

GV Odunga, J

October 5, 2022

Between

Charles Chege

1st Plaintiff

Lydia Wangui

2nd Plaintiff

and

Lukenya Ranching & Farming Co-operative Society Ltd

1st Defendant

Mativo & Company Advocates

2nd Defendant

Ruling

1. This ruling arises from an application dated June 28, 2022 taken out on behalf of the 2nd defendant applicant herein in which he seeks the following orders:1. That the application herein be certified urgent and fit to be heard ex parteon priority basis in the first instance.2. That the suit herein be struck off as against the 2nd defendant.3. That in any event, the costs of the suit and this application be awarded to the Defendant/Applicant.

2. The application was supported by an affidavit sworn by the 2nd Defendant on the same day. According to the Applicant, looking through the claim, it is alleged to have emanated from a transaction where he was instructed in September 2014 to act for the 1st Defendant herein in the sale and transfer of LR No Mavoko Block 3/30793 to the Plaintiffs. He averred that having wound up his law practice following his appointment to the bench, he instructed my former secretary to try to trace the records pertaining to the said transaction and she came up with the unsigned sale agreement a copy of which he exhibited.

3. He then instructed his advocates on record to review the Court file in Machakos, but was informed that the said file has nothing other than the plaint, verifying affidavit and the sketchy witness statements of the 1st and 2nd Plaintiffs but unaccompanied by any document.

4. From the documents filed, the 2nd Defendant noted that his former law firm was accused of professional negligence which occurred on or about September 25, 2014, an allegation which he denied. Based on legal advice, he averred that the said transaction was duly completed and title released to the Plaintiffs on or about September 25, 2014 and he exhibited a file copy of the letter forwarding the said documents to the Plaintiffs.

5. It was further averred that whereas a suit under the tort of negligence may not be brought more than 3 years after the accrual thereof, this suit cannot be based on the underlying contract because the same was between the Plaintiffs and the 1st Defendant herein and there was no privity of contract between the 2nd Defendant and the Plaintiffs herein.

6. Based on legal advice, the 2nd Defendant deposed that the Plaintiffs suit is fatally defective and liable to be struck of on the grounds that:-i.There is no reasonable cause of action against him;ii.The suit is scandalous, frivolous and or vexatious in that it is an indirect attempt to revive a settled suit between the parties;iii.The suit is prejudicial, embarrassing and or will delay the fair trial of this matter;iv.It is otherwise a complete abuse of the Court process.

7. It was submitted on behalf of the 2nd Defendant that on or about September 11, 2014, the 2nd Defendant was instructed by the 1st Defendant to act on its behalf in respect of an agreement for the sale of Mavoko BLK 3/30793 situate in Machakos district to the Plaintiffs. The agreement was made and signed by the parties and the purchase price was paid in full and a transfer effected to the Plaintiffs, who took possession of the suit property.

8. However, over eight (8) years after taking possession, the Plaintiffs have sued the 2nd Defendant alleging professional negligence and seeking to recover the sum of Kshs 22,000,000/= on that account.

9. It was submitted that it is not in dispute that the Sale Agreement was entered on the July 9, 2014; completion thereof was effected on or about September 25, 2014 and possession duly granted to the Plaintiffs; and this suit was filed on April 7, 2022 about eight (8) years after the event.

10. According to the 2nd Defendant, any suit under the tort of negligence should be filed within three (3) years of the accrual thereof in favour of the Applicant and reliance was placed on Section 4(2) of the Limitation of Actions Act. In this case, the Plaintiffs waited for eight (8) years before filing the suit hence the Plaintiffs’ suit against the 2nd Defendant is barred by the statute of limitations.

11. In support of his submissions the 2nd Defendant relied on GN Macharia (Gichuhi Ndirangu Macharia) vs Barclays Bank of Kenya [2019] eKLR, citing the case of Bosire Ogero vs Royal Media Services [2015] eKLR, Britam General Insurance Company (K) Limited vs Simon Benjamin Njoroge Karanja & another [2021] eKLR, Alfred Mutinda Mutua vs CFC Stanbic Bank (K) Ltd [2019] eKLR and Evelyne Onyamo Agindu v Evelyne Onyamo Agindu [2022] eKLR.

12. Based on the foregoing, it was the 2nd Defendant’s case that the Plaintiffs’ suit is caught by the above provisions of law and legal authorities and should be dismissed with costs to the 2nd Defendant herein.

13. As regards the privity of contract, it was submitted that the contract entered on or about July 9, 2014 was between the Plaintiffs and the 1st Defendant. The sale agreement had no nexus whatsoever between the Plaintiffs and the 2nd Defendant save for the fact that he acted as an advocate for the parties in the matter. According to the 2nd Defendant, an advocate acting on behalf of a party is not bound by the contract for sale of land and cannot be liable even for breach of contract. Should there be a challenge with possession of the suit property, the only recourse for the Plaintiffs is to sue the 1st Defendant for compensation or return its money. In this regard reliance was placed on Agricultural Finance Corporation vs Lengetia Limited & Jack Mwangi[1985] eKLR and Savings & Loan (K) Limited vs Kanyenje Karangaita Gakombe & Another(2015) eKLR.

14. It was therefore submitted that no suit for damages for breach of contract is tenable against the 2nd Defendant.

15. In seeking to have the suit against him struck out, the 2nd Defendant relied on Order 2 Rule 15 of the Civil Procedure Rules, 2010 and on Yaya Towers Limited v Trade Bank Limited (In Liquidation) Civil Appeal No 35 of 2000 and it was submitted that the Plaintiffs’ suit does not disclose to this Court that the agreement for sale of the subject matter hereof was executed between the Plaintiffs and the 2nd Defendant. It was therefore submitted that the entire proceedings against the 2nd Defendant are a nullity and should be struck out with costs in favour of the 2nd Defendant.

16. In opposing the application, the Plaintiffs relied on the replying affidavit sworn by Charles Chege the 1st Plaintiff herein on July 27, 2022.

17. It was the Plaintiffs’ case that At the core of this Application and suit is the sale agreement and transfer in respect of Mavoko Block 3/30793 entered into by the Plaintiffs and the 1st Defendant and presided over by the 2nd Defendant/Applicant herein who negligently acted as the advocate on record for both the vendor and purchaser to the prejudice of the purchasers. Upon completion of the Sale, the Plaintiffs herein purported to enter into possession of the suit property which possession was hindered by some locals who alleged that the suit property is public land. After many failed attempts to get definitive answers, the Plaintiffs was informed in 2018 that the land was indeed public land earmarked for the development of a hospital.

18. According to the Plaintiffs the 1st Defendant sold them public land and that the 2nd Defendant who was their advocate failed to exercise due diligence as their advocate on record.

19. It was submitted that this suit is not time barred since the suit herein is for the recovery of land which is governed by Section 7 of the Limitation of Actions Act. In this case, I was submitted that it is not in dispute that the Agreement for sale in this matter was entered into on July 9, 2014. The suit herein was filed in April 2022, eight years since the cause of action arose. This is well within the limitation period. In support of this submission the Plaintiffs relied on Justus Tureti Obara vs Peter Koipeitai [2014] eKLR.

20. It was submitted that the Respondent herein seeks relief from the Applicant for professional negligence based on misrepresentation of facts in order to obtain legal fees from the purchaser.

21. The Plaintiffs relied on Section 26 of the Limitation of Actions Act and submitted that the Applicant’s presence in this suit is indispensable as it is necessary to establish when the 2nd Defendant’s negligence and breach of duty were discovered which can only be discovered at trial by viva voce evidence. They relied on the case of Mukisa Biscuit Manufacturing Limited vs West End Distributors [1969] EA 696 and Sohanlaldurgadass Rajput & Another vs Divisional Integrated Development Programmes Co Ltd [2021] eKLR and urged that the case against the 2nd Defendant/Applicant should not be struck out.

Determination 22. I have considered the application, the affidavits both in support of and in opposition to the application and the submissions on record. Order 1 rule 10(2) of the Civil Procedure Rules provides as follows:"The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."

23. The principles guiding the striking out of pleadings and cases are now well settled. These principles, as set out in D T Dobie & Company (K) Ltd vs Muchina [1982] KLR 1, are that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it. The rationale for this is due to a realisation that the exercise of the powers for summary procedure are draconian, coercive and drastic. And because a party may thereby be deprived of his right to a plenary trial, the court exercises those powers with the greatest care and circumspection and only in the clearest of cases as regards the facts and the law. The summary procedure should therefore only be adopted when it can be clearly seen that a claim or case is clear and beyond doubt unarguable and the judicial system would never permit a party to be driven from the judgement seat without any court having considered his right to be heard, except in cases where the cause of action was obviously and almost incontestably bad.

24. The application before the trial court was principally brought under Order 2 rule 15 Subrule (1)(a)(b)(c) and (d) of theCivil Procedure Rules which provides as follows:"At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)it discloses no reasonable cause of action or defence in law; or(b)it is scandalous, frivolous or vexatious; or(c)it may prejudice, embarrass or delay the fair trial of the action; or(d)it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be."

25. In the exercise of its powers under the said provision there are certain well established principles that a court of law is to adhere to. Whereas the essence of the said provisions is the striking out of an action or defence, that is a jurisdiction that must be exercised sparingly and in clear and obvious cases and unless the matter is plain and obvious, a party to civil litigation is not to be deprived of his right to have his suit tried by a proper trial. The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case or striking out a defence for not disclosing a reasonable cause of action defence for being otherwise an abuse of the process of the court.

26. The power to strike out pleadings must be sparingly exercised and it can only be exercised in clearest of cases. If a pleading raises a triable issue even if at the end of the day, it may not succeed then the suit ought to go to trial. However, where the suit is without substance or groundless of fanciful and or is brought is instituted with some ulterior motive or for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process, the court will not allow its process to be a forum for such ventures. To do this would amount to opening a front for parties to ventilate vexatious litigation which lack bona fides with the sole intention of causing the opposite party unnecessary anxiety, trouble and expense at the expense of deserving cases contrary to the spirit of the overriding objective which requires the court to allot appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

27. The ground upon which the application was based was that the defence filed is just a mere denial and sham. In other words, the Respondent’s view was that the defence was frivolous. A matter is if (i) it has no substance; or (ii) it is fanciful; or (iii) where a party is trifling with the Court; or (iv) when to put up a defence would be wasting Court’s time; or (v) when it is not capable of reasoned argument. See Dawkins vs Prince Edward of Save Weimber (1976) 1 QBD 499; Chaffers vs Golds Mid (1894) 1 QBD 186. Again a pleading or an action is frivolous when it is without substance or groundless or fanciful and is vexatious when it lacks bona fides and is hopeless or offensive and tends to cause the opposite party unnecessary anxiety, trouble and expense. See Bullen & Leake and Jacobs Precedents of Pleading (12th Edn) at 145.

28. In the Raghbir Singh Chatte vs National Bank of Kenya LimitedCivil Appeal No 50 of 1996, the Court of Appeal held:“If a general traverse…were held to be sufficient and effectual, that would render meaningless provisions such as Order VI Rule 9(3) of the Civil Procedure Rules and even the decisions of this Court such as Magunga General Stores vs. Pepco Distributors Limited [1988-92] 2 KAR 89. The position of the law…is that a mere denial or general traverse in defence is not sufficient and a defendant who does not specifically plead to all the issues raised in a plaint risks the probability of his defence being struck out or being held to Constitute an admission of the issues raised in the Plaint.”

29. In Magunga General Stores vs Pepco Distributors Ltd[1987] KLR 150; [1988-92] 2 KAR 89 [1986-1989] EA 334 the same Court held:“Mere denial is not a sufficient defence in a claim for breach of contract for goods sold and delivered and cheques issued in settlement thereof. There must be a reason why the defendant does not owe the money. Either there was no contract or it was not carried out or failed. It could also be that payment had been made and could be proved. It is not sufficient therefore to simply deny liability without some reason given.”

30. However, in the Co-Operative Merchant Bank Ltd vs George Fredrick Wekesa Civil Appeal No 54 of 1999 the Court of Appeal stated as follows:“The power of the Court to strike out a pleading under Order 6 rule 13(1)(b)(c) and (d) is discretionary and an appellate Court will not interfere with the exercise of the power unless it is clear that there was either an error on principle or that the trial Judge was plainly wrong...Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court. The defence raises a fundamental issue, namely, whether there was any misrepresentation as alleged by the respondent, a question which, cannot possibly be answered at the stage of an application for striking out; nor will it be competent for the court of appeal to try to answer it as its jurisdiction only extends to identifying whether, if any, there are issues which are fit to go for trial. The court has no doubt whatsoever, that the above is a fundamental triable issue...A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment. The appellant’s defence cannot be said to fall into that category and had the trial Judge considered fully all the matters alluded to, he would not have come to the same conclusion as he did.”

31. In Yaya Towers Limited vs Trade Bank Limited (In Liquidation) Civil Appeal No 35 of 2000 the same court expressed itself thus:“A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved...If the defendant assumes the heavy burden of demonstrating the claim is bound to fail, he will not be allowed to conduct a mini trial upon affidavits...It is not the length of arguments in the case but the inherent difficulty of the issues, which they have to address that, is decisive... The issue has nothing to do with the complexity or difficulty of the case or that it requires a minute or protracted examination of the documents and facts of the case but whether the action is one which cannot succeed or is in some ways an abuse of the process of the Court or is unarguable...Where the plaintiff brings an action where the cause of action is based on a request made by the defendant he must allege and prove inter alia, both the act done and the request made for doing such an act. In the absence of any request shown to have been made by the defendant in the particulars delivered of such allegation, it would not be possible for the plaintiff to prove any request made by the defendant and without this the essential ingredient of the cause of action cannot be proved and the plaintiff is bound to fail...No suit should be summarily dismissed unless it appears so hopeless that it is plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.”

32. In this case, the determination of the instant application depends on the nature of the claim against the 2nd Defendant. Whereas the Plaintiffs contend that the matter is a claim for recovery of land, it is clear that while that may well be the case against the 1st Defendant, it is certainly not the case against the 2nd Defendant. The case against the 2nd Defendant is purely for professional negligence. Section 4(2) of the Limitation of Actions Act bars in express terms such a claim being mounted after the expiry of 3 years from the date the alleged cause of action arose. In this matter, it is agreed that the cause of action arose well after the expiry of the said limitation period. I associate myself with the decision i G N Macharia (Gichuhi Ndirangu Macharia) vs Barclays Bank of Kenya [2019] eKLR, in which the case of Bosire Ogero vs Royal Media Services[2015] eKLR was cited with approval that:“The Law of Limitation of actions is intended to bar plaintiffs from instituting claims that are stale and (is) aimed at protecting defendants against unreasonable delay in bringing of suits against them. The issue of limitation goes to the jurisdiction of the court to entertain claims and therefore if a matter is statute barred, the court has no jurisdiction to entertain the same.”

33. Therefore, as was held in Britam General Insurance Company (K) Limited vs Simon Benjamin Njoroge Karanja & another [2021] eKLR:“This suit having been filed outside the circumscribed time is faulty and incompetent and the court has no authority to entertain it. I find that this suit is incompetent for being statute barred and therefore reject the plaint and order that it be struck out with costs to the defendant and interested parties.”

34. I also adopt the opinion of the Court of Appeal in Alfred Mutinda Mutua vs CFC Stanbic Bank (K) Ltd [2019] eKLR that:“Limitation of actions is not a procedural technicality and failure to file suit on time cannot be remedied by Article 159(2) (d) of the Constitution…the pleadings and evidence pointed to an action in tort…and therefore the suit was subject to limitation period of three years as stipulated under the Limitations of Actions Act, Section 4(2).”

35. The Plaintiffs have failed to successfully surmount the defence of limitation and being a jurisdictional matter, this Court cannot inquire further into the matter which is clearly statutory time barred.

36. Apart from that it is agreed that the 2nd Defendant’s role in the transaction as that of a facilitator. He was not a party to the suit. Accordingly, there was no privity of contract between him and the Plaintiffs and in light of my finding as regards the limitation, the case against him based o contract cannot be sustained. I am guided by the decision of Hancox, JA in Agricultural Finance Corporation vs Lengetia Limited & Jack Mwangi[1985] eKLR, that:“As a general rule a contract affects only the parties to it, it cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.”

37. In Savings & Loan (K) Limited vs Kanyenje Karangaita Gakombe & Another (2015) eKLR, the Court of Appeal rendered itself as hereunder:“In its classical rendering, the doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly a contract cannot be enforced either by or against a third party.”

38. It therefore follows that based on both limitation and privity of contract there is no case of action against the 2nd defendant herein and i find that the suit against him is frivoluos and merely brought to embarrass and vex him.

39. To quote Omollo, JA in the case of J P Machira vs Wangethi Mwangi & Another Civil Appeal No 179 of 1997, although disputes ought to be heard by oral evidence in court, there is no magic in holding a trial and receiving oral evidence merely because it is normal and usual to do so since a trial must be based on issues; otherwise it may become a farce.

40. In the premises I find merit in the application dated June 28, 2022 which I hereby grant and strike out the 2nd defendant from this suit with costs.

41. Orders accordingly.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF OCTOBER, 2022. M W MUIGAIJUDGEDelivered the presence of: