[2022] KEHC 12170 (KLR)

Makokha v Obongo (Civil Appeal E025 of 2021) [2022] KEHC 12170 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12170 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E025 of 2021

JR Karanja, J

July 6, 2022

Between

Christoher Oduor Makokha

Appellant

and

Jairus Owino Obongo

Respondent

Judgment

1. This appeal is against the judgment of the senior principal magistrate in Busia CMCC no 164 of 2019, in which the appellant/plaintiff’s claim for the sum of kshs 660,000/- and general damages for breach of contract against the defendant/respondent was dismissed with costs to the defendant for being time barred.Being aggrieved, the appellant prepared the appeal on the basis of the grounds set out in the Memorandum of Appeal dated July 8, 2021 and filed herein on July 16, 2021.

2. The hearing of the appeal proceeded by way of written submissions which were filed on behalf of the appellant by B M Ouma & Co Advocates and on behalf of the respondent in opposition to the appeal by Ashioya & Co Advocates.The appeal together with the rival submissions have been given due consideration by this court whose role was to revisit the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses.

3. In that regard, the appellant in the Plaint dated June 16, 2017, pleaded that on or about April 13, 1990, the defendant agreed to sell to him a parcel of land measuring 100 x 100 ft situated at Bumala market centre and registered as Marachi/Bujumba/1169 for an agreed price of kshs 26,000/- which was fully paid to the respondent/defendant. Thereafter, the parties obtained the necessary consent of the Land Control Board and executed the necessary transfer forms on April 22, 1992.

4. However, due to frustrations by the respondent against the appellant the property was never registered in the name of appellant as the respondent failed to avail the original title to the land registrar for necessary alterations and registration of the property in the appellant’s name. Instead, the defendant/respondent transferred the property to a third party called Wanende Eugene Owino.

5. The plaintiff contended that by a written agreement dated August 8, 2016, the defendant bound himself to respondent a sum of kshs 700,000/- to the plaintiff being the agreed current market value of the property. A part payment in the sum of kshs 40,000/- was made by the defendant who refused, failed and/or neglected to pay and settle the outstanding balance of kshs 660,000/-. The plaintiff therefore prayed for the outstanding balance together with general damages for breach of contract against the defendant.

6. The defendant/respondent denied the claim on the basis of the averments contained in his statement of defence dated and filed herein on September 19, 2017. At the hearing of the case, the appellant, Christopher Oduor Makokha testified and availed necessary documentary evidence in support of the claim. He did call two witnesses i.e. John Mabiri Okwaro (PW 2) and Isaac Metto Okwaro (PW 3).The respondent, Jairus Owino (DW 1) also testified and called no witness.

7. The trial Court considered all the evidence availed by the parties and rendered its judgment on July 7, 2021, dismissing the appellant’s claim for being time barred.In arriving at that conclusion, the trial Court remarked:“I have considered the submissions by the rival advocates. I agree with the submissions of Mr Ashioya that actions founded on contract cannot be brought after the expiry of six years. The agreement giving rise to the action was on April 13, 1990 and the case filed on June 16, 2017 way after the expiry of six years.The agreement dated August 8, 2016 was just a mere undertaking to pay what was paid out of a contract entered in 1990. It cannot be said to be a new agreement. It cannot by law breath life to a legally dated transaction which happened about 24 years ago”.

8. Having re-considered the matter afresh, this court would agree that the appellant’s claim was founded on a contract of sale of land entered between the appellant and the respondent on April 13, 1990. The handwritten agreement (PEX 1) was apparently signed by both parties and dismissed by John Maberry or John Mabiri Okwaro (PW 2) and Isaac M Okwaro (PW 3) on the same day.The agreed purchase price was the sum of Kshs 26,000/-.

9. It was therefore evident that the cause of action rose on the April 13, 1990 when the agreement was made. This case was formally filed on June 16, 2017 approximately twenty seven (27) years after the cause of action arose.Under S 4 (1) of the Limitation of Actions Act, actions founded on contract may not be brought after the end of six (6) years from the date on which the cause of action accrued. In as much as the appellant submitted this suit way past the prescribed time for such action, he fell foul of the aforementioned provision of the Limitation of Actions Act as there was no extension of time by the court at his instance.

10. The subsequent agreement made on August 8, 2016 between the parties (P.EX 4) was a separate agreement anchored on the previous agreement but being treated as an extension of the previous original agreement dated April 13, 1990 which was the basis of this matter. In any event, the subsequent agreement could not purport, as it did, to revive the previous agreement which had expired approximately twenty six (26) years ago and was “as dead as a dodo”.In the circumstances, the appellant, could not find solace in S 23 and S 24 of the Limitation of Actions Act.

11. The trial court was correct in finding that the appellant’s claim was time-barred.Besides, it is worth of note that whereas the original agreement dated April 13, 1990 related to a parcel of land described as no Marachi/Bujumba/1120, the subsequent agreement dated August 8, 2016 related to a parcel of land described as plot 1169 which is actually Marachi/Bujumba/1169 and indicated in the transfer form (PEX 2(b)) dated April 22, 1992. It would therefore follow that the cause of action related to parcel no Marachi/Bujumba/1120, thereby implying that parcel No. Marachi/Bujumba/1169 was irrelevant to this suit and for purposes of the Limitation of Actions Act.

12. In sum, this appeal is wanting on merit and is hereby dismissed with costs to the respondent.Ordered accordingly.

J R KARANJAHJ U D G EDELIVERED AND SIGNED THIS 6TH DAY OF JULY, 2022