[2017] KEHC 805 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO. 117 OF 2012

GULAM RASUL MIRDAT.........................................PLAINTIFF

VERSUS

DATMA ENTERPRISES LIMITED........................DEFENDANT

R U L I N G

1. For the determination by Court is the Notice of Motion by the defendant dated 14/7/2016 seeking an Order that the plaintiffs suit be struck out with costs on the grounds that the suit is misconceived, abuse of court process and hopelessly time barred having been filed in the year 2012 to enforce an agreement dated 24/6/1991.

2. That application is supported by the supporting affidavit of VINCENT OMOLLO ADVOCATE whose gist is that the suit is time barred the cause of action having arisen in the year 1991 and that the letter dated 2/10/2011 does not acknowledge plaintiffs ownership of the suit property.

3. The application was opposed by the plaintiff by filed grounds of opposition dated 16/11/2016 and Replying affidavit sworn on the 31/10/2016. The sum total of the grounds of opposition and Replying affidavit is that the plaintiff claim is not only supported by the agreement and letter dated 2/10/2011 but also by the plaintiffs list of documents and that the application does not reveal or disclose what provision of the law dictate the suit to be statute barred since Section 4 does not apply to the suit. It is then added in the affidavit that the court be minded to seek the attainment of substantial justice that would demand that the application be dismissed. Parties equally filed written submissions.

Defendant/Applicant’s Submissions

4. In support of the application the defendant filed very brief submissions insisting that the cause of action arose in 1991 and the suit filed in 2012 hence outside the prescribed statutory timelines. Reliance was then placed on the decision in Ronex Properties Ltd vs John Laing Construction Ltd [1983] 1 QB 398 for the proposition that where the plaint discloses that the cause of action arose outside the statutory set time and the defendant intends to rely on the defence of limitation then unless there emerges something to allow plaintiff escape from the defence, then the plaint would be struck out.

5. Reference was then made to paragraph 9 of the plaint and the letter dated 2/10/11 and listed as document No. 7 in the plaintiffs list of documents and pointed out that on its face the letter makes no acknowledgment of the plaintiff’s title. On those grounds the defendant urged the court to allow the application and to strike out the plaintiff suit against it.

Submissions by the Plaintiff/Respondent

6. The plaintiff resists the defendant’s application on two main points:-

i. That the suit as crafted, drafted and filed cannot be said to be frivolous vexatious or an abuse of the process of the court.

ii. Both sections 4 & 7 of the limitation of actions Act are of no assistance to the Defendant as by dint of section 44 of the same act the cause was revived by the letters exchanged between the advocates for the parties.

7. Reliance is then placed on a letter dated 2/8/2011 and the decision in National Housing Corporation vs Usii Owade Ayoma [2008] eKLR on the application of Section 44 of the Act. On the basis of the said letter the plaintiff contends and maintain that the suit was revived and therefore there is a triable issue the court should give a chance rather than applying the draconian remedy of striking out the suit in limine. Refuge is then sought in the provisions of Article 50 of the constitution as well as sections 1A, 1B and 3A of the Civil Procedure Act.

Analysis and determination

8. Clearly the application is grounded on the provisions of Order 2 Rule 15(1) b & d. That provision provide grounds for striking out to be:-

(a) …

(b) it discloses no reasonable cause of action or defence in law; or

( c) …

(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.

When it is alleged that the plaintiff ought to be struck out on those grounds, the law on burden of proof is clearly rested upon the person alleging.

9. I have looked at the application, the affidavit in support thereof and even the submission and the pleadings filed and I am not convinced at all that a case has been made out for striking out of a suit on the law cited.

10. However, there is advanced a defence at paragraph 3 that the suit is time barred. If it be disclosed by scrutiny of the pleadings and documents exhibited that the suit is indeed time barred then not even Article 50, leave alone the provisions of the Civil Procedure Act would come to the rescue of the plaintiff. No Law would come to the plaintiff rescue because this being a Court of Law, it is bound to enforce the law and the timelines set under the limitation of actions Act remains good law unless shown to be otherwise unconstitutional.

Is the cause statute barred?

11. Without citing the particular provision, which is not fatal to the claim if proved [1], the defendant contends that the plaintiffs suit is statute barred. Those words alone when put in the context of the plaint at paragraph 3-8 and prayer (i) thereof leave no doubt that the defendant is contending that the suit being grounded on specific performance of an agreement for sale of land, the plaintiff is seeking to recover land or an interest therein, therefore the suit was filed out of time. Therefore, it is Section 7 of the Limitation of Actions Act the defendant is relying upon without specifically saying so.

12. That section provides:-

“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right to action accrued to him or, if it first accrued to some person through whom he claims, to that person”.

13. Read on its own the provision dictates that an action to recover land be bought before end of 12 years from the date the cause of action accrued. In this case, the cause of action must have accrued, according to the terms of the agreement for sale and receipts for payment of the full purchase price. It is evident that in terms of clause 3 of the agreement and receipt dated 22/9/1991 the cause of action accrued sometimes towards the end of 1991. Accordingly, therefore, the suit ought to have been instituted not later than 1st January 2002. This suit was however filed on 21/6/2012.

14. The plaintiff has pleaded and contended that by correspondence from the defendant’s advocates, the cause of action was revived in the year 2011 by a letter dated 2/10/2011 and other letters listed in the plaintiff’s list of documents. To start with, I will quote the letter the plaintiff relies upon. It reads:-

“I have been unable to trace my file on this matter. I will only be able to throw more light once my file is traced. Could you kindly forward to me copy of Agreement of Sale dated 24th June 1991.

I can re-collect that some years back the squatters on the plot filed a suit claiming adverse possession. Mr. Vincent Omollo of Messrs Kamoti & Company Advocates was instructed to handle the matter. Your client called on us a couple of years ago and we referred him to Mr. Omollo to find the way forward.

By a copy of this letter I am asking Mr. Omollo to get in touch with you to brief you on the position of the Court Case”.

15. To this Court that letter does not admit the plaintiffs claim at all.

It merely says the author was unable to be of assistance till he gets his office file. However, there were earlier letters, in particular the one dated 25/1/2000 which to this court had the effect of reviving the cause of action in accordance with Section 44 of the Limitation of Actions Act which states:-

“Nothing in this Act-

a. enables any action to be brought which was barred before the commencement of this Act by any written law repealed, or which in its application to Kenya is repealed, by this Act except in so far as the cause of action or right of action may be revived by an acknowledgment or part payment made in accordance with this Act”. (Emphasis provided)

16. That letter dated 25/1/2000 reads:-

“ Our Ref: LJM/H/A 615/78

Your Ref:

25th January 2000

Mr. Gulam Rasul Mirdat

P O Box 81373

Mombasa

Dear Sir

RE: MOMBASA/BLOCK X/284 (LEASEHOLD)

We acknowledge receipt of your letter dated 5th January 2000.

We appreciate your concern. We regret to inform you the Land Office has misplaced all the documents.

However we are now applying for issue of Provisional Certificate of Lease and then re-do the surrender of lease in your favour. We sincerely regret the delay. We hope you will bear with us and sort out this matter. (Emphasis added)

Yours faithfully

SACHDEVA & COMPANY

L J MANGHNANI ”

17. This letter clearly admitted the plaintiffs claim and promised to work towards transfer in favour of the plaintiff. It did revive the cause and time started running from its date.

18. Based on this letter the time of bringing the action was revived and started to run on that date when the defendants advocate clearly undertook to effect a transfer in favour of the plaintiff. From that date the plaintiff had 12 years to file the suit. In my calculation he had up to the 24/1/2012. It is therefore apparent that the suit having been brought on the 21/6/2012 was clearly brought out of time and was clearly statute barred.

19. Having been so statute barred, it does not present a reasonable claim against the defendant, it is forbidden by law and the court of law must only describe it for what it is. It is statute barred, cannot stand and is therefore struck out with costs to the defendant.

Dated and delivered at Mombasa this 28th day of February 2017.

HON. P.J.O. OTIENO

JUDGE

[1] Order 50 Rule 10 Civil Procedure Rules