[2017] KEHC 2340 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 97(B) OF 2016

RISPER OWENGA OGUNDE ...............................................APPELLANT

-V E R S U S –

JOAKIM OKESA MWANDALE.....................................1ST RESPONDENT

CHARLES NYAGWANA ONYANGO ............................ 2ND RESPONDENT

(Being an appeal from the judgement of Hon. Chesang R. M. delivered on the 4th day of February, 2016 in Nairobi Chief Magistrate’s Court, Milimani Commercial Courts, Civil Case no. 2408 of 2013)

JUDGEMENT

1) On 4th February 2016, Hon. M. Chesang, learned Resident Magistrate, gave judgment in favour of Joakim Okesa Mwandale, the 1st respondent herein and against Risper Omwenga Ogunde, the appellant herein. In the aforesaid judgement the appellant was ordered to refund to the 1st respondent a sum of ksh.105,000/= plus interest at court rates being the initial amount paid to the appellant by the 1st respondent for the purchase of plot no. 482 Migori site and service scheme within Kisumu Municipality. The 1st respondent was also awarded costs of the suit. Being aggrieved, the appellant preferred this appeal in which she put forward the following grounds:

1. That the honourable magistrate erred in law and in fact in failing to find that the suit by the 1st respondent is statute barred by the Limitation of Actions Act Cap 22 Laws of Kenya.

2. That the honourable magistrate erred in law by failing to appreciate that the action herein being based on a contract expired within six years and that the suit herein filed on the 29th of November 1999 was a nullity ab initio and that therefore the honourable court did not have any jurisdiction to hear and determine the same.

3. That the honourable court erred in law in purporting to elongate the period allowed for filing such action from six years to twelve years and in so doing the court acted illegally and without any jurisdiction.

4. That the honourable erred in law by failing to appreciate that this was not a claim for adverse possession where the 12 year rule applies.

5. That the honourable court erred in law by dismissing the appellant’s preliminary objection without any sufficient regard and appreciation of the applicable law.

6. The honourable court erred in law by allowing the 1st respondents alternative prayer against the weight of the applicable law.

7. That the honourable court erred in law in condemning the appellant to bear the costs of the suit after finding that the appellant had every right to resell the property following fundamental breach by the 1st respondent.

2) When the appeal came up for hearing, learned counsels recorded a consent order to have the appeal disposed of by written submissions. I have re-evaluated the case that was before the trial court. I have further considered the rival submissions. Though the appellant put forward a total of seven (7) grounds of appeal, the main ground which commends itself for consideration is the question as to whether or not the suit before the trial court was time-barred. The trial magistrate considered the submissions made by way of a preliminary objection and in the end she overruled the appellant. Hon. M. Chesang stated that Section 7 of the Limitations of Actions Act elongated the time of filing an action in such a case to 12 years. It is the submission of the appellant that this action being that based on contract was filed out of time hence it should have been dismissed for being time barred pursuant to the provisions of Section 4(1) of the Limitations of Actions Act. The appellant pointed out that the 1st respondent is seeking to enforce rights arising from the contract executed on 28. 11. 1989 yet the suit was filed in 1999 way beyond the six (6) years provided for by the statute.

3) The 1st respondent on the other hand is of the view that the issue in dispute is a breach of contract. It is pointed out that the appellant had breached the contract by reselling the plot and that fact came to the knowledge of the 1st respondent sometimes in the year 1996/1997 and therefore the suit was filed within the statutory period. I have also examined the decision of the learned Resident Magistrate and it is clear that she dismissed the appellant’s assertion that the suit was time-barred on the basis that the subject matter of the suit being a contract to land then it is only fair to state that Section 7 of the Limitation of Actions Act elongated the period provided for by Section 4 thereof to 12 years.

4) It is not in dispute that under Section 4 of the Limitations of Actions Act, actions founded on contract may not be brought after the end of 6 years from the date when the cause of action arose. It is also not in dispute that under Section 7 of the same Act provides that an action for recovery of land cannot be brought after the end of 12 years from the date when the cause of action arose. In order to determine the sort of dispute which is before this court, it is important to examine the plaint which was before the trial court. I have examined the plaint dated 29. 11. 1999 and it is apparent that the 1st respondent had sought for judgment in the following terms:

a) Declaring the defendants are not entitled to enter and use the said plot 492 Migosi site and service scheme Kisumu Municipality and an injunction restraining the defendants whether by themselves their tenants servants or agents or otherwise howsoever from entering remaining on continuing in occupation or using the said plot and or building; specific performance of the said agreement and all necessary and consequential accounts directions and inquiries and damages for conspiracy, trespass, loss of use and breach of contract lieu or in addition to specific performance.

b) Further or other relief within the inherent jurisdiction of court.

c) Costs and interest at court rates.

5) It is obvious from the aforementioned prayers that the 1st respondent had sought for inter alia an order for specific performance. In other words the 1st plaintiff had sought to recover plot no.492 Migori site and service scheme, Kisumu Municipality in furtherance of the agreement of sale he executed with the vendor.

6) With respect, the learned Resident Magistrate came to the correct decision when she held that the action being founded on a contract for sale of land, the period to file a suit was elongated by 7 of the Limitation of Actions Act. Her decision therefore cannot be faulted on this account.

7) Even if one was to argue that the available remedy was for the recovery of the purchase price, the question which must be answered is when did the cause of action arise. If the 1st respondent intended to recover the purchase price only then the action can rightly be categorized as based on contract. An action founded on contract can only be filed before the lapse of six years from the date when the cause of action arose.

8) I have carefully perused the plaint filed before the trial court.

The 1st respondent avers in paragraph 9(c ) of the plaint dated

29. 11. 1999 as follows:

“On or about 1996 the defendants conspired amongst themselves to dispose of and alienate the plaintiff’s interest in the said plot to the 2nd defendant.”

9) It is apparent from the aforequoted excerpt that the 1st respondent came to know of the breach of contract in 1996, therefore the cause of action can be said to have arisen in 1996 or thereabouts. The action was filed three years thereafter i.e in 1999. It is clear in my mind therefore that the action was filed before the lapse of six (6) years.

10) In the end, I find no merit in the appeal. It is dismissed in its entirety with costs to the 1st respondent.

Dated, Signed and Delivered in open court this 6th day of October, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

..................................................... for the Respondent