[2022] KEHC 15988 (KLR)

Pembe Flour Mills v Vintage Auctioneers & another (Civil Suit E469 of 2020) [2022] KEHC 15988 (KLR) (Commercial and Tax) (25 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15988 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit E469 of 2020

A Mshila, J

November 25, 2022

Between

Pembe Flour Mills

Plaintiff

and

Vintage Auctioneers

1st Defendant

Leakeys Storage Limited

2nd Defendant

Ruling

1. There are two Notices of Preliminary Objections filed by the Defendants and the Court will consider them together. The 2nd Defendant filed a Notice of Preliminary Objection dated February 18, 2022 on the grounds that;a.The Plaintiffs suit herein is statute time barred by dint of Section 4 (2) of the Limitations of Actions Act (Cap 22 Laws of Kenya), because the claim is founded on negligence which should have been commenced three (3) years from the date of the negligent act and therefore the suit is therefore non-suited;b.The Plaint dated the April 23, 2019 and filed on November 17, 2020, is incurably defective as it does not disclose any course of action, reasonable or otherwise and the same ought to be struck out with costs to the 2nd Defendant; andc.The Plaintiffs suit is incompetent, bad in law, barred in law, an abuse of the Court process and should be dismissed with costs to the 2nd Defendant.

2. By reason of the foregoing the suit is misconceived and an abuse of the Court's process and should be dismissed with costs.

3. The 1st Defendant also filed a Notice of Preliminary Objection dated March 12, 2021 on the following grounds;a.No proper suit exists in this matter since the cause of action being a tortious claim is time barred under the provisions of Sections 4 (2) of the Limitation of Actions Act, cap 22 of the Laws of Kenya.b.The entire suit was misconceived ab initio as the Plaintiff ought to have filed the same within 3 years from the date the cause of action arose which time lapsed on the July 10, 2020. c.The entire suit is frivolous, vexatious, scandalous and an abuse of the court process.d.This suit ought to be dismissed with costs to the 1st Defendants forthwith.

Applicants’ Case 4. It was the Applicants’ submission that the Notice of Preliminary Objection raises a pure point of law. The point of law is premised on the fact that the cause of action was framed as a tort of negligence whose statutory period of limitation is three (3) years from the date the action occurred. The 2nd Defendant is certain that if both the letter and spirit of Section 4(2) of the Limitations of Actions Act were to be applied, the probable resolve would be that the suit is time barred and warrants a dismissal.

5. The point of law raised by the Notice of Preliminary Objection is whether the suit as filed is time barred by virtue of Section 4(2) of the Limitation of Actions Act. The facts are deemed agreed, as they are prima facie presented in the pleadings on record. If a pragmatic approach is adopted and the date of the tort occurrence is tallied together with the date when the three (3) years were to lapse; the outcome would clearly indicate that the suit was filed outside the timeframe that the law allowed the Plaintiff to seek recourse. In summation, the 2nd Defendant's Notice of Preliminary Objection as filed raises a pure point of law and is properly before the Court.

6. The Plaint dated the April 23, 2019, and filed on the November 17, 2020, expressly pleads that the cause of action occurred between the June 21, 2017 and July 12, 2017. The cause of action is framed on the tort of negligence and as such its limitation period is clearly dependent on the provisions of the Limitations of Actions Act Sec 4(2) which provides that an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.

7. It was the Applicant/1st Defendant’s argument that in view of the above statutory provision, it therefore follows that if the cause of action in the present suit occurred on the July 12, 2017, then the three (3) years lapsed on the July 12, 2020. The Plaintiff was at liberty to institute a suit from the July 12, 2017 to the July 12, 2020 without seeking leave from the Court but failed to do so.

8. After the cut-off date, the Plaintiff was statute bound to first seek for leave from the Court before instituting the suit. No proof has been provided before this Court to show that leave was sought before the instant suit was instituted and filed on the November 17, 2020, and as such the suit is time barred. The Applicant prayed that the Notice of Preliminary Objection be allowed.

9. The 2nd Defendant in supporting its own Application and the Applicant’s Application added that; Section 27 of the Limitation of Actions Act does not provide for extension of the period for filing a suit in respect to tortious claims of negligence for damages in a liquidated claim like the one in the present suit but only allows extension in personal injuries claims as was held in Daniel Sebastian Angwenyi v Everex Travellers Ltd & Ano [2015] eKLR.

10. The Plaintiff’s action founded on tort of negligence became statute barred on July 10, 2020 while it was filed on November 11, 2020 four months after it became statute barred.

11. The 2nd Defendant relied on the maxim that ‘equity aids the vigilant and not the indolent’ and stated that the Plaintiff was indolent in pursuing its claim and therefore it cannot blame or punish the Defendants by bringing an already time barred claim. The only recourse available in law is to have the entire suit dismissed with costs.

Issues For Determination 12. The Court has considered the Application and the submissions by the respective parties and drafts only one issue for determination;a.Whether the suit is time barred and should be dismissed?b.Whether the Preliminary Objection is merited?

Analysis 13. The Applicant herein raise a Preliminary Objection on the ground that the suit is time barred. In addressing what constitutes a Preliminary Objection the court in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors (1969) EA 696 where Law JA at page 700 stated;“… a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

14. At page 701 Sir Charles Newbold P added;“A preliminary objection 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.”

15. In the case of Gathoni v Kenya co-operative Creameries Ltd (1982) KLR 104 Potter, JA stated the rationale of the Law of Limitation as follows: -“The law of limitation of actions is intended to protect defendants against unreasonable delay in bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.”

16. Further in the case of Rawal v Rawal (1990) KLR 275 the court held as follows: -“The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time. See also the case of Melita v Shah (1965) EA 321 cited with approval by Bosire, J in the above case.”

17. The Applicants argued that the Plaintiffs suit herein is statute time barred by dint of Section 4 (2) of the Limitations of Actions Act (Cap 22 Laws of Kenya), because the claim is founded on negligence which should have been commenced three (3) years from the date of the negligent act and therefore the suit is therefore non-suited.

18. Section 4 (2) of the Limitation of Actions Act provides;“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued….”

19. The Court has carefully perused the Plaint dated April 23, 2019 and filed on November 17, 2020 and is satisfied that the suit is hinged on the actions of the 1st and 2nd Defendants’ negligence. Action accruing from a tort of negligence may not be brought after the end of three years from the date on which the cause of action accrued.

20. The suit having been filed on November 17, 2020 and the cause of action occurred between the June 21, 2017 and July 12, 2017; the three years within which the suit was to be filed had already lapsed.

21. The upshot of the foregoing is that the Court finds the Notice of Preliminary Objections dated March 12, 2021 and February 18, 2022 are merited and the same is upheld. The suit is Statute barred and thus struck out entirely.

Findings And Determination 1. For the forgoing reasons this court makes the following findings and determinations;i.This court finds that the Preliminary Objection on limitation has merit and it is hereby upheld;ii.This court finds that the instant suit is statute barred and the suit is also found to be incompetent and it is hereby struck out;iii.Instead of burdening the Plaintiff with costs due to an error not of its own making this court directs that each party shall bear its own costs.

Orders Accordingly

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 25TH DAY OF NOVEMBER, 2022. HON A MSHILAJUDGEIn the presence of;Omondi for the 1st DefendantOkiror holding brief for Miss Mururi and Miss Njoki for the 2nd DefendantNo appearance for PlaintiffLucy----------------------------------Court Assistant