[2010] KEHC 2273 (KLR)
The court held that the suit was time barred as the claims related to events from the early 1990s and the plaintiff had not sought leave to file the suit out of time. Jurisdictional issues such as limitation of actions are fundamental and cannot be overlooked. While the lack of particularization in the plaint was...
Source-derived case information.
- Citation
- [2010] KEHC 2273 (KLR)
- Parties
- Plaintiff: Jim Matia Bandi; Defendant: Kenya Commercial Bank Limited; Defendant: The Madison Insurance Company
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 34 of 2007
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit struck out as time barred
- Legal Topics
- Limitation of Actions, Striking Out of Pleadings, Particularization of Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jim Matia Bandi
Plaintiff
Kenya Commercial Bank Limited
Defendant
The Madison Insurance Company
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time barred under the Limitation of Actions Act.
- 2 Whether the plaint should be struck out for lack of proper particularization under Order VI Rule 8 Civil Procedure Rules.
Ratio Decidendi
The court held that the suit was time barred as the claims related to events from the early 1990s and the plaintiff had not sought leave to file the suit out of time. Jurisdictional issues such as limitation of actions are fundamental and cannot be overlooked. While the lack of particularization in the plaint was noted, the court found this defect was not fatal and could have been remedied by amendment. However, the limitation issue was dispositive, and the preliminary objection was upheld on this ground. Consequently, the suit was struck out for being time barred.
Court Disposition
suit struck out as time barred
Orders
- The preliminary objection is upheld on the issue of limitation of action.
- The suit is struck out as time barred.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Case 34 of 2007
JIM MATIA BANDI................................................................................PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LIMITED.........................................1ST DEFENDANT
THE MADISON INSURANCE COMPANY...........................................2ND DEFENDANT
RULING
PRELIMINARY OBJECTION
Background
In this Commercial Law matter the plaintiff filed suit in person on 5th March 2007. He made claims against a bank 1st defendant and an Insurance Company 2nd defendant whereby he claims that he had been deprived of his standing ordered premiums that he had ordered the bank to remit to the 2nd defendant.
The bank and Insurance Company’s action was irregular. He prays for compensation loss and damages.
Preliminary Objection
3. Both the 1st and 2nd defendant separately sought for the striking out of the plaintiffs, plaint by the 1st defendant, that the suit is time barred by the 2nd defendant. By the 2nd defendant, that the particularization of the claims made was not done according to order VI r 8 Civil Procedure Rules (The 1st defendant was absent from these proceeding.)
4. In reply, the advocate for the plaintiff who has come onrecord stated that we cannot go into the issue of technicalities under order XLIV r 6 Civil Procedure Rules
Findings:
5. Jurisdiction goes to the root of a case. The claim has been filed for matters in the early 1990’s. These claims are time barred but the plaintiff had an opportunity to seek leave to file the said suit out of time.
6. The plaint required to be particularized. This was not fatal and an amendment could have been taken.
7. This court herein rules that the preliminary objection be and is hereby upheld on the issue of limitation of action.
8. This suit is time barred. It is struck out. I make no orders as to costs because the issue was raised in 2008 about a year later. The delay was inordinate.
9. Costs to the defendant No. 2 but not defendant No 1 as they are absent.
Dated this 29th day of April, 2010 at Eldoret
M. A. ANG’AWA
JUDGE
22/04/2010
Advocate: -
Angu Kitigin advocate instructed by the Firm of M/s Angu Kitigin & Company Advocates
for the Plaintiff
W.M. Simiyu advocate instructed by the Firm of M/s W.M. Simiyu & Company
Advocates for 2nd Defendant,
A. Yano advocate instructed by the Firm of M/s Yano & Company Advocates
for the 1st Defendant.