[2019] KEHC 3855 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

CIVIL APPEAL NO.42 OF 2018

JOSEPH SANYA MWAKAVI.......................................................APPELLANT

-VERSUS-

HANNINGTON K. KIOKO................................................1ST RESPONDENT

RHODA KYUMWA.............................................................2ND RESPONDENT

(Being an Appeal from the Ruling of Hon. J.D. Karani (RM) in Makindu Principal Magistrate’s Court

Civil Case No.182 of 2017, delivered on 6th June 2018)

JUDGMENT

1. The Appellant filed a suit claiming for Kshs.500,000/= with interest and costs against the Respondents jointly and severally. The claim was denied by the Respondents, through a joint statement of defence.

2. The Respondents on 10th April, 2018, filed an application by way of Notice of Motion dated 9th April, 2018 seeking to have the suit struck out for being statute barred.

3. The parties were given an opportunity to argue the application which they did. Thereafter, the learned trial magistrate delivered a ruling dated 6th June, 2018 striking out the Appellant’s suit for being time barred.

4. The Appellant being dissatisfied with the ruling filed this appeal citing the following grounds: -

1) That, the learned magistrate erred in law and in facts in arriving at a decision which was against the weight of evidence and specifically disregarding all evidence on an agreement for advancing a friendly loan of Kshs.500,000/= to the Defendants/Respondents basically on grounds of limitation of time and failing to appreciate the evidence that the friendly loan was advanced without interest which only accrued upon the lapse of the repayment period.

2) That, the learned magistrate erred in law and fact in arriving at a decision which was against the parties’ loan repayment agreement and considering extraneous issues of limitation of actions.

3) That, the learned magistrate erred in law and in fact in failing to properly analyze and address himself on the evidence before him and misdirected himself on arriving at erroneous conclusion not supported by evidences.

4) That, the learned trial magistrate erred in law and in fact and misdirected himself in applying wrong principles in arriving at an erroneous decision.

5) That, the learned trial magistrate erred in law and in facts in failing to analyze and address himself on the pertinent legal and factual issues contained in the Appellant’s submissions, evidence and facts thereby arriving at erroneous and misguided determination.

5. The argument by the Respondents before the trial court, was that the claim was based on contract and ought to have been filed before the expiry of six (6) years, which was not the case. The Appellant had argued that the claim was based on a gentleman’s handshake and could be filed anytime.

6. The parties disposed of the appeal by written submissions. The Appellant relied on Section 19(1) of the Limitation of Actions Act to buttress his appeal. The said Section provides: -

Section 19(1)

“An action may not be brought to recover a principal sum of money secured by a mortgage on land or movable property, or to recover proceeds of the sale of land, after the end of twelve years from the date when the right to receive the money accrued.”

Section 19(2)“A foreclosure action in respect of mortgaged property may not be brought after the end of twelve years from the date on which the right to foreclose accrued:

Provided that:

i. If after that date the mortgagee was in possession of the mortgaged property, the right to foreclose on the property which was in his possession does not accrue until the date on which his possession discontinued;

ii. This subsection does not apply to a foreclosure action in respect of mortgaged land, but instead the provisions of this Act relating to actions to recover land apply to such an action.”

He referred to the holding in the case of Deposit Protection fund –vs- Roseline Njeri Macharia & Anor. HCCC. No. 399 of 2005 (NRB)to buttress his case.

7. The appeal was opposed by the Respondents through their counsel Mr. Kasyoka. He submitted that the claim is based on an agreement to lend money and had nothing to do with a mortgage or charge as insinuated by the Appellant.

8. The Appellant’s claim was anchored on paragraph 4 of the plaint dated 5th June, 2017 and filed on 8th June, 2017 which states

“That on 10th December, 2010 the Defendant borrowed a sum of Kshs.500,000/= from the Plaintiff to be refunded within a period of 120 days that is 10th May, 2011 and it was mutually agreed between the Plaintiff and the Defendants that if the Defendants fails to refund the said sum of Kshs.500,000/= within the stipulated time, 120 days the Defendant shall pay to the Plaintiff an interest of 20% of the principal amount per month as per their agreement dated 10th December, 2010. ”

Basically, the Appellant’s claim is for breach of an agreement. A contract is an agreement where an offer is made by one party and accepted by the other.

9. Section 4(1) of the Limitation of Actions Act (LOK) provides as follows: -

Section 4(1)The following actions may not be brought after the end of six years from the date of which the cause of action accrued –

a) Actions founded on contract;

b) ................................................

Under the stated provision of the law, the Appellant’s claim ought to have been filed before the expiry of (6) years.

10. The Appellant in his submissions argued his appeal citing Section 19(1)and(2) of the Limitation of Actions Act. A party is bound by his/her pleadings and in this case, the claim is not based on a mortgage on land or moveable property. It was money being lent. From the annexed agreement, the security was a payslip. That argument has no standing at all, as the alleged transaction was not related to movable property and/or mortgage on land.

11. From the annexed agreement, the money was disbursed on 10/12/2010 and was to be repaid on 10/05/2011. The default was therefore from 10/05/2011 and that’s when time started running. The six (6) years lapsed on 10th May, 2017. It follows that the last day on which the suit ought to have been filed was 10th May, 2017. The present suit having been filed on 8th June, 2017 was filed twenty-nine (29) days late.

12. The Appellant never sought leave to file suit out of time. Having already filed the suit he could not start seeking for an extension of time to file it. The suit was therefore time barred as found by the learned trial magistrate.

13. I find no merits in the appeal which I dismiss with costs.

Orders accordingly.

DELIVERED, SIGNED AND DATED THIS 9TH DAY OF OCTOBER, 2019, IN OPEN COURT AT MAKUENI.

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H. I. ONG’UDI

JUDGE