[2002] KEHC 515 (KLR)
The court found that the issue of whether the suit is time barred under the Limitation of Actions Act could not be determined at this stage without evidence, as there was no clear indication from the defence as to when the limitation period began to run. The court also held that the plaint disclosed a cause of...
Source-derived case information.
- Citation
- [2002] KEHC 515 (KLR)
- Parties
- Plaintiff: John Kimani Njoroge; Defendant: Serah Njeri Mwobi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 90 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint and for Counterclaim Prosecution
- Outcome
- Application dismissed with costs.
- Legal Topics
- Limitation of Actions, Striking Out Pleadings, Cause of Action, Sale of Land, Counterclaim, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kimani Njoroge
Plaintiff
Serah Njeri Mwobi
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint and for Counterclaim Prosecution
Legal Issues
- 1 Whether the plaint discloses a cause of action.
- 2 Whether the suit is time barred under the Limitation of Actions Act.
- 3 Whether the defendant should be permitted to prosecute the counterclaim.
Ratio Decidendi
The court found that the issue of whether the suit is time barred under the Limitation of Actions Act could not be determined at this stage without evidence, as there was no clear indication from the defence as to when the limitation period began to run. The court also held that the plaint disclosed a cause of action, as the plaintiff had purchased the plot, paid the price, and taken possession, with registration being a formality. Furthermore, since there was a counterclaim arising from the same transaction, it was just and proper for the suit to proceed to full hearing. The application to strike out the plaint was therefore dismissed for lack of merit.
Court Disposition
Application dismissed with costs.
Orders
- The application to strike out the plaint is dismissed with costs.
- The suit shall proceed to full hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 90 OF 1999
JOHN KIMANI NJOROGE …………....……………………… PLAINTIFF
VERSUS
SERAH NJERI MWOBI ……………………………………. DEFENDANT
RULING
The plaint in this suit was first filed on 8th February l999. There are 2 amendments. By application dated 13. 9.2000 the defendant filed a Notice of Motion under order VI rule 13 Civil Procedure Rules praying that the plaint be struck out as it discloses no cause of action and alternatively that the claim is time barred under Limitation of Actions Act and that the defendant be permitted to prosecute his counter claim.
In the argument counsel for the applicant simply said that the suit is time barred under our Limitations of Action Act. He referred to authority of Reeves v. Butcher 1891 2QB 589. This is an action for payment of money and it was held that time begun to run from the earliest time at which the plaintiff could have brought her action after default of payments.The other authority of Dismore v. Milton (l938) 3ALLER was in relation to a suit of Libel. It was held that where it appears from a statement of claim that the plaintiff’s cause of action arose at a time before the period prescribed by the statute of Limitations, it is not possible for the defendant to have the statement of claim struck out on the ground that it shows no cause of action ….” These cases relate to English decisions and should not be lied upon heavily there being our statute and several cases decided on our statute. This case concerns sale of land. It is clear from pleadings that the plaintiff purchased the plot and paid the price and was put into possession. The issue of registration is a formality to be completed in respect of registered title.The contract is completed upon payment of price and taking of possession. This in my view is an issue to be decided at trial with evidence. Also the land here has been registered twice. There is no evidence from the defence as to what period he limitation of actions has taken effect. At this stage this court is unable to say that the suit is time barred. In any case there is a counterclaim pleaded by the defendant arising out of the same transaction. Justice of the case demands that the suit do proceed to the full hearing. I do not find that the plaint shows no cause of action or that here is sufficient evidence to show that the case is time barred.
I therefore find no merit in the application which is hereby dismissed with costs.
Dated this 24th day of June 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read in presence of Mr. Nzili and Mr. Kimani
J. KHAMINWA
COMMISSIONER OF ASSIZE
Mr. Kimani: -
I apply for copies of pleadings and certified decree and leave to
appeal.
Mr. Nzili: -
No objection.
Court: -
Orders granted as prayed. Payment of copying charges by applicant.
J. KHAMINWA
COMMISSIONER OF ASSIZE