[2007] KEHC 2421 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 834 of 2002

MOTEX KNITWEAR MILLS LIMITED ………..…………….PLAINTIFF

VERSUS

GOPITEX KNITWEAR MILLS LIMITED ……………….DEFENDANT

RULING

The gist of the defendant’s preliminary objection is that the plaintiff’s claim is time barred under the provisions of Section 4 of Cap 22 Laws of Kenya. The grounds on which the defendant contends that the plaintiff’s claim is time barred are:-

(1) That the alleged cause of action as pleaded in paragraph 3 of the plaint arose on 21st and 22nd June 1995.

(2) From the date of the alleged cause of action, a period of six years expired on 20th and 21st June, 2001.

(3) The plaint herein having been filed on 8th July, 2002 the same was certainly filed outside the limitation period of six years contemplated by the said Section 4 of the limitation of Actions Act.

(4) The defence dated 4th September, 2002 and filed in court on the same date has pleaded the defence of limitation in paragraph 3.

(5) The plaintiff’s reply to defence dated 10th September, 2002 and filed in court on 11th September, 2002 pleads in paragraph 2 thereof that;

“The defendant did make a written acknowledgement on 10th September, 1998 and therefore the statutory period of limitation started running afresh”.

The submissions of Mr. Kuria is that the plaintiff’s claim is time barred by limitation of Actions Act. In paragraph 3 of the plaint, it is stated that the goods subject matter were supplied on 21st and 22nd June, 1995. The alleged cause of action is based on a debt arising out of an alleged sale of goods. Section 4 of Cap 22, limits the period for such a claim to 6 years.

And the period of 6 years computed from 21st and 22nd June, 1995 would expire on 20th and 21st June, 2001. The suit herein was filed outside the period of 6 years. The defendant’s defence dated 4th September, 2002 pleads in paragraph 3 that the suit is time barred. In the reply to defence, it was pleaded in paragraph 2 that the defendant did make a written acknowledgement on 10th September, 1998 and therefore the statutory period started afresh from that date.

According to Mr. Kuria Advocate the letter dated 10th September, 1998 did not amount to an acknowledgement within the meaning of Section 23 and 24 of Cap 22 Laws of Kenya. The said letter denied express liability and it also denied the validity of the amounts claimed against the goods allegedly supplied. Mr. Kuria Advocate submitted that as far as the law is concerned for any written statement to amount to an acknowledgement of a claim, there are certain ingredients which must be present;

(1)It must be in writing and signed by the maker.

(2)It must contain an acknowledgement of the indebtedness, which should either be express or by way of a promise to pay or by way of seeking indulgence.

(3)It must be addressed to the plaintiff, which is not the case.

Mr. Kuria further contended that the letter dated 10th September, 1998 is not addressed to the plaintiff. And that the said letter is addressed to a 3rd party by the name Kenya Knitting and Weaving Mills Ltd, the letter therefore fails to meet the requirements of the law. And nowhere in the pleadings that it is alleged that the addressee is an agent of the plaintiff, hence that letter cannot be said to have been addressed to the plaintiff or his agent.

Mr. Nyawara Advocate for the plaintiff submitted that the issue as to limitation was brought through the defence. And faced with that defence, the plaintiff filed a reply to defence because there is a written acknowledgement by the defendant. There is a proper reply to the defence of limitation taken by the defendant. Mr. Nyawara Advocate contended that what follows is whether the defence or reply is tenable. And since the basis of the preliminary objection is the letter dated 10th September 1998, then that is evidence, therefore the court cannot decide the objection by taking evidence.

I have considered the opposing interpretation of the letter dated 10th September 1998 by the defendant and plaintiff. It is not in dispute that the basis of the defendant’s preliminary objection is the letter attached to the preliminary objection filed by the defendant. It was contended by Mr. Kuria that the letter did not amount to an acknowledgement of debt. And that in any case it was not addressed to the plaintiff and that there is no evidence that the addressee is an agent of the plaintiff. In my view the contents, nature and circumstances of the letter dated 10th September 1998 is a matter of evidence which can only come out through a full hearing. It is only by way of evidence that the court would be able to determine under what circumstances the letter was written and why it was addressed to the person it was addressed.

There is no dispute that the contents of the letter refer to the goods subject of this dispute. It would on my view be premature to hold that there is no agency or relationship between the plaintiff and addressee of that letter. The contents of the letter is in agreement with the contents of the defence in paragraph 4, 5, 6, 7, 8 and 9, therefore it is dangerous for this court to determine the dispute in a preliminary objection based on a letter which is not properly before court. It is not properly before court because there is no application meant for my decision. The letter was attached to the notice of preliminary objection, which is unprocedural. In my view a preliminary objection is argued on the premise that all facts relied upon are correct and undisputed. It cannot be raised when certain facts or issues are to be ascertained.

On my part I do not think the preliminary objection raised by the defendant consist of pure points of law. The issue of limitation primarily is intertwined with the subject letter dated 10th September 1998. The issues in the letter cannot arise my determination because the letter was not properly tendered before me. In my understanding a point of law must be able to stand on its own without any support on factual issues. The present objection is based on a disputed letter whose contents and impart is completely opposed by the plaintiff in the interpretation given by the defendant. I therefore think there is no pure and clear point of law, which can determine the life and existence of the plaintiff’s suit. It means the plaint is alive and must be allowed to its final conclusion.

The upshot is that the preliminary objection dated 29th June, 2007 is dismissed with costs.

Dated and delivered at Nairobi this 6th day of July, 2007.

M. A. WARSAME

JUDGE