[2010] KEHC 3562 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI

Civil Suit 85 of 2005

SILVANA CORSARO ………...…………………PLAINTIFF

VERSUS

LUIGI FOMICA & ANO……….……………….DEFENDANT

R U L I N G

The application dated 10th June 2005 is made under Order VII Rules 112, 3 and 10 of the Civil Procedure Rules Order 13(1) (b) and (d) and 16 as well as section 3A of the Civil Procedure Act, Section 4, 27, 28 and 30 of the Section 35 of the Land Titles Act.

It seeks to strike out the amended plaint on grounds that the verifying affidavit is defective, irregular and improper.

(b) That the suit be struck out on grounds of limitation as it discloses no cause of action.

(c) Costs are sought to be awarded to the 2nd defendant.

The grounds upon which this application are that;

(1)The plaintiff’s action is founded on tort which under section 4(2) of the Limitation of Actions Act, may not be brought after the end of three years from the date on which the cause of action arose and plaintiff was aware of this

(2)The transfer of portion No. 631 (Malindi) by the plaintiff and the 1st defendant in favour of the 2nd defendant was registered in the Land Titles Registry at Mombasa on 3-10-97 – the cause of action arose on 2nd October 2000.

(3)The suit herein was not instituted until 29th October 2004, well after three years from the date on which the cause of action arose and so the plaintiff’s cause of action was extinguished.

(4)The time to institute the proceedings has not been extended by the court beyond the period of 3 years.

(5)There is nothing to justify filing of the suit after three years from the date the cause of action arose and it’s therefore an abuse of the court process.

(6)No notice has been given by the plaintiff of the alleged fraud to the Recorder of Titles by section 35 of the Land Titles Act (Cap 282) and so this action cannot be maintained.

(7)The suit is misconceived in law as Tamani Jua Properties Ltd, in whose favour a lease dated 18th February 2002 was granted by the 2nd defendant and registered against the title of portion No. 631, Malindi (which is the suit property) after the registration of the transfer of the suit property to the 2nd defendant on 3rd October 1997, has not been joined as a party to the suit.

(8)The amended plaint dated 22nd March and filed on 29th March 2005 is accompanied by a verifying affidavit sworn by the plaintiff on 2nd September 2004, which in fact is the copy of the verifying affidavit accompanying the plaint dated 1st October 2004 and does not comply with Order VII Rule 2 of the Civil Procedure Rules.

The affidavit in support of this application (which is sworn by Najimuddin Hassanali Mohamdali Noorbhai) is simply a repeat of what is stated in the body of the application as grounds thereto.

The application is opposed, and respondent has filed grounds of opposition pointing out that 2nd defendant has not pleaded a time bar as a defence and so cannot rely on the same to seek striking out of the plaintiffs’ suit.

(2)The plaintiff’s action is for recovery of land whose limitation period under the Limitation of Actions Act (Cap 22) is twelve (12) years.

(3)In any event, the plaintiff’s action is based on the fraud by the defendants and as such the limitation period did not start running until the plaintiff discovered the fraud.

(4)The provision of section 4(2) of the Limitation of Actions Act, (Cap 22) do not apply.

(5)The issue as to whether or not the Titles Act was not complied with by the plaintiff, was not raised in the 2nd defendant’s defence and cannot be used as a basis for the 2nd defendant’s application.

(6)The provisions of section 35 of the Land Titles Act (Cap 282) is not applicable to this suit, as the plaintiff’s claim is not brought under the provisions of section 34 of the said Act.

(7)The joinder or non-joinder of Tamani Jua Properties Ltd to this suit is not fatal to the plaintiff’s claim. The court has the power to determine the rights of the parties before it.

(8)Tamani Jua Properties Ltd, can apply to be joined in the suit if they so wish to participate in the proceedings.

(9)An amended plaint does not require to be accompanied by a verifying affidavit, and a defect or irregularity in a verifying affidavit is not fatal to the suit. The issues for determination are:-

(i) Does party have to plead limitation for it to be time barred?

(ii) Is this a Tort or action for recovery of land?

(iii) Does amended plaint require verifying affidavit?

Counsel for the respective parties filed written submissions and at the hearing highlighted certain features in their respective submissions.

It is submitted on behalf of the 2nd defendant, that the verifying affidavit was sworn on 2-9-04, whilst the plaint is dated 1-10-04 meaning that it was sworn before the plaint came into existence and there was nothing which the plaintiff was verifying, so the plaint is defective and irregular.

Then again there is the amended plaint dated 22-3-05 filed with the plaintiff’s verifying affidavit sworn on 2nd September 2004 and that there is no way the plaintiff could be verifying in September 2004, amendments made in March 2005.

While acknowledging that the Rule does not specifically provide that a verifying affidavit shall accompany the amended plaint, the applicant’s counsel contends that both the verifying affidavits on record are defective, irregular and improper and therefore deal a fatal blow to the plaint which must then be struck out. Reference is made to the decision in Josephat Kipchirchir Sigilai v Gotals Enterprises Ltd and 4 others, Court of Appeal CA 98/03 and also Said Swaleh Ghuthan Saanun v The Commissioner of Lands and 5 others Msa HCCC 222/02

It is also argued that the plaintiff’s claim is founded on fraud, which is a tort, and the limitation period under section 4(2) of the Limitation of Action Act is three years. Applicants counsel insists that this is the only cause of action pleaded in the Amended plaint. He points out that in paragraphs 8 and 2(a) of the Amended plaint, the plaintiff states that the suit land was transferred to the second defendant by an indenture dated 24th September 1997 and a lease dated 19th February 2002, was issued to Tamani Jua Properties for a period of 52 years, and it is apparent from the amended plaint that the suit is brought outside the applicable period of limitation and no facts have been given in the plaint, which if proved would extend the limitation period and there is no need for the court to look at the defence statement.

With regard to section 35 of the Land Titles Act, it is submitted that the plaintiff has not pleaded that a notice has been given to the recorder of titles. He argues that since orders are sought against Tamani Jua Properties then they must be made parties in the suit before orders against them can issue.

In response, Mr. Okongo for the plaintiff submits that the amended plaint need not be accompanied by a verifying affidavit and so the one filed herein was superfluous and whether or not it was defective has no effect on the amended plaint.

He seeks to rely on the decision in Twictor Investments Ltd v Euro Bank Ltd and Another (2006) e KLR where a preliminary objection was taken that an amended plaint had been filed without a verifying affidavit allegedly in breach of Order VII Rule 2 Civil Procedure Rules, and the court held that Order VII Rule 2 does not require any verifying affidavit to accompany an amended plaint or any other pleading save the plaint originating the action.

This same reasoning was advanced in the case of LawrenceSammy Sifuna v Bungoma County Council and 3 others (2005) e KLR.

What’s more, Mr. Okongo points out that failure to comply with Order VII Rule 1 (2) can be cured since the power to strike out as donated by Order VII rule 1(3) is discretionary, and where it is likely to cause prejudice then the cure should be invoked – citing the case of Josephat Kipchirchir Sigilai where the High Court held that:

“an omission to fully comply with provision is a mere irregularity which except in very clear cases, may be cured….striking out is a draconian and extreme measure which is resorted to in clearest of cases where the court after considering all the facts and circumstances of the case, comes to the inescapable conclusion that the plaintiff is abusing the court process or his claim is frivolous, or vexatious or reandlous or does not lie”

He points out that in the Sigilai case, the Court of Appeal set aside orders of striking out a suit on grounds that it had been accompanied by a defective verifying affidavit and granted the appellant/plaintiff seven (7) days within which to swear a proper affidavit. He urges this court that should it be of the view that the verifying affidavit was defective ab initio then it should adopt the Court of Appeal’s approach in Sigilai’s case and offer that cure, since 2nd defendant will not suffer any prejudice which cannot be compensated with costs.

He has also referred this court to the decision in Microsoft Corporation v Mitsumin Computer garage Ltd 2001 LLR 1109.

As for the suit being time barred, Mr. Okonyo submits that if the 2nd defendant had wished to rely on the Limitation of Actions as a defence, then the same ought to have been` specifically pleaded and in the absence of such pleading, then the 2nd defendant is precluded from raising the issue of time as a ground for striking out the plaintiff’s suit. Counsel has cited the decision

Achola & Anor V Hongo & Ano (2004) 1 KLR 462where the court held that the 2nd respondent was obliged to specifically plead limitation based on the statute before being allowed to use it as a basis for the preliminary objection – he quoted the court’s ruling that:

“The High Court was not right in allowing the issue of Limitation to be raised when it had not been pleaded and in upholding the preliminary objection ofthe 2nd respondent based on the issue of limitation”

This decision was followed in the High Court decision of Benson Kibugi Rigii v Anselimy Aerodi Abenjir 2008 eKLR

What’s more, Mr. Okongo argues that the claim is for recovery of plaintiff’s land which was fraudulently transferred to the 2nd defendant by the 1st defendant, and under section 7 of the Limitation of Actions Act, the period for bringing such suit runs for twelve (12) years. In any case, if the plaintiff’s claim is solely founded on the tort of fraud, then the plaintiff has pleaded in the Amended plaint that she discovered the fraud on 20th February 2004, and under section 26 of Cap 22, for cases based on fraud, time does not start running until the fraud has been discovered by the plaintiff. He points out that in this instance, time begun running on 20th February 2004 when plaintiff discovered the fraud so the plaintiff’s claim was filed within time on 20-10-04 and that pleading the date when the fraud was discovered was sufficient. He urges the court to find no basis for his ground and to dismiss the application.

In reference to section 35 of the Land Titles Act (cap 282), it is submitted that this was not pleaded and that Order VI Rule 4(2) specifically provides that a defendant to an action for the recovery of land shall plead specifically every ground of defence on which he relies – which is not the case here and unless the 2nd defendant amends its statement of defence to plead the issue, it cannot be allowed to raise the same as this stage or at the trial – reference is made to the court of Appeal decision of Galaxy Paints Company Ltd v Falcon Gairas Ltd CA 219 of 1998 where the court noted that it was wrong to determine a case on an issue not pleaded and parties are bound by their own pleadings – Gandy v Caspair 1956 EACA 139 and Nairobi City Council v Thabiti Enterprises Civil Appeal No. 264 of 1996are cited to guide this court.

In the alternative, Mr. Okongo submits that even if the issue is held to have been properly raised by the 2nd defendant, section 35 of LTA does not apply in this suit because only a person who claims to have been wrongfully deprived of immovable property or any estate or interest therein by fraud or by an error, omission or misdescription in a CERTIFICATE OF TITLE, is required before filing a suit for the recovery of the immovable property concerned from the person to whom the certificate of title has been granted by reason of the said fraud or error, omission or misdescription, to give notice of action to the Recorder of Titles. It is stressed that the notice to be given is of the action and not of the fraud as alleged by 2nd defendant.

It is his contention that plaintiff’s claim has not been brought on grounds that 2nd defendant was granted certificate of title of the suit property by fraud. He clarifies that the claim arises from the fraudulent transfer of the suit property by the 1st defendant to the 2nd defendant –which is why section 35 as cited does not apply. Further that even if section 35 of the LTA applies to this suit, then failure to comply with the said section is not fatal to the suit and is not a ground for striking out the plaint. He points out that the section simply requires the notice to be given to the recorder of titles that an action has been instituted and there is no time limit prescribed under the LTA within which such notice ought to be given. He urges that if the court finds that the plaintiff is in breach of the section, then what the court should do, is to order the plaintiff to serve the appropriate notice to the Recorder of Titles.

As for striking out the suit on grounds that Tamani Jua Property has not been joined, Mr. Okongo submits if Tamani so desires, they are at liberty to make the appropriate application and the plaintiff has no business holding their brief.

Further that Order 1 Rule 9 provides that joinder or non joinder of a party cannot defeat a suit and the court shall deal with the matter in controversy so far as regards the interest and rights of the parties actually before it, so that this ground should also fail.

Should the amended plaint be accompanied by a verifying affidavit and was the initial verifying affidavit defective ab initio.

The requirement that a plaint must be accompanied by a verifying affidavit is found in Order VII Rule 1(2)

“The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the corrections of the amendments contained in the plaint.”

Where this provision is not complied with, then the court may strike out the plaint as provided under Order VII Rule 1 (3)

In this instance the amended plaint is dated 22nd March 2005, the verifying affidavit filed is the same one which had been filed with that signal plaint and is dated 2nd September 2004.

The argument by the 2nd defendant’s counsel is that a plaintiff cannot verify in September 2004 averments made in March 2005.

Is this a defect or irregularity which warrants striking out of the plaint?

It is acknowledged that the rule does not specifically provide that a verifying affidavit shall accompany the amended plaint – but what about the fact that it pre-dates the plaint by a year or so? Case law offers guidance

In the Joseph Sigilai Case, it was acknowledged that a verifying affidavit is intended to make the plaintiff own every averment in his plaint – but can he own what had not even come into existence as at the time of wearing the affidavit. It is clear that one cannot aver to or swear to facts in a plaint or document which does not exist at the time the affidavit was sworn and no explanation has been offered as to how the respondent was verifying to a non existent plaint almost a year even before it came into existence. To that extent then the verifying affidavit is defective – such view was held by my brother Ibrahim J on the case of Delphis Bank Ltd v Asudi (K) Ltd and Jacob Bwali Omolo HCC (Milimani) no. 82 of 2003.

To that extent, the verifying affidavit is invalid and incompetent. As at the date of swearing the affidavit, there must be a plaint in existence capable of being verified. I therefore order that the verifying affidavit NOT the suit be struck off for being offensive.

But that leads to the next issue as to whether the mended plaint can stand without the verifying affidavit

Ordinarily where there is a valid and complainant verifying affidavit supporting the original plaint, then the amended plaint need not have another accompanying affidavit. This view is expressed in several decisions and I shall refer to Lawrence Simiyu Sifuna case.

The Lawrence Sifuna case was very forthright, that an amended plaint does not require to be accompanied by a verifying affidavit. This was also the position adopted in the case cited by applicant of Said Swaleh Ghaitha Sannith v The Commissioner of Lands and 5 others (Msa) HCC NO. 227 of 2002where the learned judge sated:

“in my opinion therefore, an amended plaint need not be accompanied by a verifying already exists in a given form and any ordeal or taken amendments are specified in form and extent …..it is not necessary and definitely not importation that an amended plaint should be accompanied with a verifying affidavit.”

I concur entirely with the holdings in the cited authorities and adopt the same view.

The cure here is for the court to exercise its discretion as envisaged in Order VII Rule 3 and take into account the attendant circumstances, the interest of justice and whether any prejudice will be occasioned by striking the entire suit due to this technical fault. I think the cure lies in directing that respondent do file and serve a compliant verifying affidavit within seven (7) days from the date of this ruling.

Was the claim time barred? Obviously so as to be able to determine this, the court must take into consideration the nature of the cause of action – is it a tort per se, tort based on fraud, or a claim for recovery of land – this is because the law sets different periods of limitation depending on he nature of the cause of action.

Should the 2nd defendant have pleaded limitation in the statement of defense?

From the pleadings the issue is with regard to a fraudulent transaction which has ended up with transfer of land claimed by the plaintiff. The prayers sought are

a)a declaration that the purported transfer was fraudulent

b)a restriction on registration of the property save or purposes of reconveying the property to plaintiffs

c)an order cancelling the registration of property in the name of 2nd defendant

d)rectification of the register so as to reverse entries made in favour of the 2nd defendant and Tamani jua.

My own perception is that the cause of action is two fold – it arises room a tort of fraud and it also seeks recovery of land.

The particulars of the fraud have been pleaded – it is conceded by both counsel that for an action based on fraud, time begins to run as at the time when the alleged fraud was discovered – in paragraph 8 of the amended plaint, the plaintiff/respondent has stated that it was upon carrying out a search on 20-2-04 that she discovered that the parcel of the lad is new registered in the name of 2nd defendant – the action was filed on the 1st October 2004. the provisions of the Limitation of Actions Act is that in cases based on tort, time limit is a period of 3 years but under section 26, that time in cases based on the tort of fraud, begins running at the time the fraud is discovered. This then takes care of the situation here and the argument that the claim is time barred cannot hold.

Even if it was to be argued that the claim is for recovery of land (since there are prayers seeking cancellation of registration in the 2nd defendant’s name) then the time running for such recovery is 12 years as recognized by section 7 of Limitation Act and so time is still valid. In any event Limitation of Action was not specifically pleaded by the defendant – I am guided by the Court of Appeal decision Achola & Anor v Hongo and another – in finding that the issue not having been pleaded, cannot now be raised as preliminary objection.

That limb in the application therefore cannot stand.

As for Tamani Jua not being joined as a party to the suit – I think 2nd defendant should stop being a busy body – they are not holding brief for Tamani Jua and that is not a point worth analyzing. I agree that non joinder of a party is not fatal. Reference is made to Order 1 Rule 9.

As regards non compliance with the provisions of section 35 of LTA if I am to use the approach that this is a claim for recovery of land, then I would be guided by the provisions of Order VI Rule 4(2) which requires that in such an action, the defendant must specifically plead every ground of defence on which he relies and find that this has not been done in the present case.

Why should section 35 of LTA apply here?

The applicant’s counsel did not address arguments to support this, simply saying a notice ought to have been given to the Recorder of Titles. I think from a look at the pleadings, the plaintiff’s suit arises from the fraudulent transfer of the suit property to 2nd defendant who now has title – to that extent section 35 would apply.

This has not been done, but I don’t think it warrants for striking out of the suit, what I means is that respondent ought to comply with the appropriate provision – which I direct her to do within the next 14 (fourteen) days. The upshot is that the application has no merit and is dismissed with costs to the respondent to be borne by the 2nd defendant.

Delivered and dated this 2nd day of March 2010 at Malindi.

H. A. Omondi

JUDGE

Mr. Nyakoe holding brief for Okongo for plaintiff

No appearance for respondent