[2024] KEELC 7006 (KLR)

Miiri v Bio-Corn Products (EPZ) Limited & another (Land Case E010 of 2024) [2024] KEELC 7006 (KLR) (24 October 2024) (Ruling)

Neutral citation: [2024] KEELC 7006 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Land Case E010 of 2024

EO Obaga, J

October 24, 2024

Between

Julius Miiri

Plaintiff

and

Bio-Corn Products (Epz) Limited

1st Defendant

Diamond Trust Bank Kenya Limited

2nd Defendant

Ruling

1. This ruling is in respect 2 applications; prayer No. 5 and 6 in the Notice of Motion Application dated 18th April, 2024 seeking that the Honourable court be pleased to strike out the plaintiff’s suit for being an abuse of court process and being statute barred together with costs of the suits by the 2nd Defendant and the Notice of Preliminary Objection dated 8th July, 2024 by the Plaintiff.

2. The Notice of Preliminary Objection was raised against the 2nd Defendant’s Application dated 18/7/2024 on the following grounds: -a.It was filed without due authority from the proposed 2nd Defendant’s company.b.There is no resolution or valid resolution of the Proposed 2nd Defendant’s company approving the institution/ filing of this application.c.There is no resolution or no valid resolution of the Proposed 2nd Defendant’s company appointing Madhani Advocates LLP to institute/ file this application for and on behalf of the Proposed 2nd Defendant’s company.d.The filing of this application by the said firm of advocates is invalid for want of authority from the Proposed 2nd Defendant’s company.e.The Proposed 2nd Defendant’s company did not authorize Faith Ndonga to swear the Supporting Affidavit for the said application.f.The Proposed 2nd Defendant’s application is frivolous and vexatious and is an abuse of the court process.g.The Proposed 2nd Defendant’s Application is scandalous, incurably defective and contravenes the provisions of the law.

3. Both the Application and the Notice of Preliminary Objection came up for hearing on the 18/9/2024; only the advocate for the 2nd Defendant was in attendance. He gave oral submissions for the dismissal of the plaintiff’s suit for being an abuse of the court process; that the averments in the application are not contested and the plaintiff has no locus to interfere with the 2nd Defendant.

4. That the suit is statute barred since the sale agreement was entered into in the year 2014; breach of contract cases have to be filed within 6 years. It was further his contention that the 2nd Defendant cannot be barred from exercising its statutory power of sale. He thus urged the court to strike out the suit on this account.

5. It was further his submissions that the preliminary objection filed by the plaintiff does not meet the threshold in the Mukhisa Biscuit case and thus has no merit.

6. I have critically looked at both the Application and the notice of preliminary objection and it is my considered view that the issues arising for determination are: -i.Whether the plaintiff’s suit should be struck out for being time barred and an abuse of court processii.Whether the Notice of Preliminary Objection dated 18/07/2024 is merited;

I. Whether the Plaintiff’s suit should be struck out 7. The 2nd defendant urged the court to strike out the plaintiff’s suit for being time barred; it is his contention that the plaintiff is claiming purchaser’s interest over the suit property, that the sale was reduced into writing vide a purported sale agreement dated 16th May, 2014 and the remedy of specific performance sought is therefore time barred.

8. He thus claims that the plaintiff’s suit has been brought almost 10 years after the date of the purported sale agreement. He further avers that the bank, which is a Chargee has never been a party nor privy to any alleged sale agreement between the plaintiff and the 1st defendant.

9. He also urged the court to strike out the suit for being an abuse of court process; a common enterprise simply orchestrated to restrain him from exercising its statutory power of sale and which scheme has been dismissed by the various decisions in the respective outlined matters in various courts.

10. I have carefully looked at the allegations contained in the Notice of Motion dated 18/4/2024 vis-à-vis the plaint. In order to determine whether the suit herein is time barred, this court must establish the date when the plaintiff’s cause of action arose.

11. Parties are bound by their pleadings; from the plaint, it is evident that the cause of action arose pursuant to an alleged agreement for sale of the suit land dated 16th May, 2014 and it is on that basis that he seeks a declaration that the said contract was/is enforceable and specific performance of the same.

12. Section 4(1) (a) of the Limitation of Actions Act provides that actions founded on contract may not be brought after the end of six years. The contract in question, by the plaintiff’s own admission is dated 16th May, 2014 whereas the suit herein was filed in the year 2024, 10 years later, which period is after the end of the six-year statutory limit. The same was filed without leave of court extending time within which to file the suit.

13. A suit barred by limitation is a claim barred by law, hence by operation of law, the Court cannot grant the relief sought. In the case of Iga v Makerere University [1972] EA, the Court had this to say on the Law of Limitation;“A Plaint which is barred by limitation is a Plaint barred by law. Reading these Provisions together it seems clear that unless the Applicant in this case had put himself within the limitation period by showing grounds upon which he could claim exemption, the Court shall reject his claim. The Limitations Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for and when a suit is time barred the Court cannot grant the remedy or relief sought.”

14. In the case of Bosire Ongero v Royal Media services [2015] eKLR, the Court stated that the question of limitation touches on the jurisdiction of the Court, which means that if a matter is statute barred, the Court would lack jurisdiction to entertain it.

15. In conclusion, I find that the instant suit is time barred on account of section 4 (1) (a) of the Statute of Limitation Act and the plaintiff’s suit is consequently struck out. As stated in the Bosire case above, this court lacks the requisite jurisdiction to entertain the suit as filed.

II. Whether the Notice of Preliminary Objection dated 18/07/2024 is merited 16. The law on what constitutes a preliminary objection is now well settled. A preliminary objection can only be raised on a pure point of law and there should be no contest as to the facts which would require the exercise of discretion. See Supreme Court decision in Aviation & Allied Workers Union Kenya vs Kenya Airways Ltd & 3 Others [2015] eKLR

17. In the celebrated case of Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd 1969 E.A. 696; the Court defined Preliminary Objection as follows;“...is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

18. The plaintiff’s main ground of objection is that the 2nd defendant’s application ought to be dismissed for want of the requisite company resolution. It is his claim that there is no valid resolution authorizing the filing of the said Application, authorizing one Faith Ndonga from swearing the Affidavit in Support of the Application and authorizing the firm of Madhani & Co. Advocates to act on behalf of the 2nd defendant.

19. The 2nd defendant dismissed the said averments and maintained that the preliminary objection raised does not meet the threshold set in the celebrated case of Mukhisa Biscuit.

20. The question that therefore follows is whether the preliminary objection as raised raises pure points of law and whether the failure to avail/file a Company’s Resolution warrants the dismissal of a party’s claim. I have carefully looked at the 2nd defendant’s application and the documents annexed to the supporting affidavit; I have noted that other than simply stating that she is duly authorized to swear the affidavit on behalf of the 2nd defendant, there is no copy of the company’s resolution authorizing the filing of the application or the swearing of the affidavit.

21. In the case of Oraro vs. Mbaja [2005] 1 KLR 141 Ojwang, J (as he then was) expressed himself as follows; -“…a “Preliminary Objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed. Where a Court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...”

22. It is clear that in order to determine the issue of company resolution, this court would have to ascertain and investigate some facts, which may be liable to be contested and/or proved by tendering evidence. Thus, it is my considered opinion that the preliminary raised does not meet the criteria of what amounts to a preliminary objection since this court will have to ascertain facts, the same does not raise pure points of law.

23. In the case of Avtar Singh Bhamra & Ano. v Oriental Commercial Bank HCC No 53 of 2004, the Court stated as follows;“A preliminary objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.”

24. In view of the foregoing, I find that the preliminary objection raised by the plaintiff does not raise pure point of law and consequently, the same is hereby dismissed.

25. In the premises, I accordingly find that the 2nd Defendant’s Application dated 18th April, 2024 is merited on account of the suit being time barred and the plaintiff’s suit is hereby struck out with costs to the defendants.

26. The notice of preliminary objection dated 8th July, 2024 by the plaintiff is not merited and is hereby dismissed with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 24TH DAY OF OCTOBER, 2024. E. O. OBAGAJUDGERuling delivered in the virtual presence of: -Mr. Shah for the 2nd DefendantCourt Assistant – Laban24th OCTOBER, 2024