ELC CASE NO 42/2020

Ruling
For determination is the preliminary objection dated 20th June 2022 filed
by the first defendant. The objection on a point of law was to the effect
that the entire suit as filed is fatally defective and bad in law for the
reason that the same is time barred having been filed outside the
limitation period as provided by section 4(1) (a) of the Limitation of
Actions Act.

The first defendant prayed that the entire suit be struck out with costs.

Parties agreed to canvass the same by way of written submissions. As

at the time of writing this ruling only the plaintiffs submissions were in the
file.

In the submissions by the plaintiff, which were opposing the preliminary

objection it was submitted that as was stated in the case of Mukisa
Biscuits Manufacturing Company Vs West End Distributors limited
(1969) EA 696, a preliminary objection consists of a point of law which
has been pleaded or arises by clear implication out of the pleadings.
That in this suit the plaintiff seeks to recover his land that has been
stolen by the first defendant. That section 7 of the Limitation of Actions
Act provide that an action may not be brought by any person to recover
land after the end of 12 years from the date of which the right of action
accrued to him.
It was submitted that the first defendants fraudulently acquired the land
in the year 2014 and the plaintiff discovered the fraud in the year 2020
which is within the statutory period of 12 years.
Further, section 4(1) (a) of the Limitation of Actions Act which the first
defendant seeks to rely, on reads that the following actions may not be
brought after the end of 6 years from the date of which the cause of
action accrued
(a)Actions founded on contract

The relevant contract in this case is the sale of land agreement dated 5th
November 2013 which required the first defendant to build the plaintiff
seven permanent rooms, erect a gated perimeter fence and to dig and
construct a pit latrine. The agreement did not provide for a completion
date so the same was to be within reasonable time.

The question then is when did the breach of contract occur? It was
argued that the breach occurred when the plaintiff realised that's the first
defendant was taking him for a ride. He then wrote to him a demand
letter dated 22nd May 2020 asking the first defendant to fulfill his part of
the contract within 14 days. The first defendant failed to honour the
demand notice and that is when the breach of the agreement arose and
the cause of action accrued.

They said that the preliminary objection by the first defendant is an

afterthought meant to confuse the issues in this case and to delay the
speedy conclusion of the matter. That the same has no merit and ought
to be dismissed with costs.

On the issue of limitation, there is consensus on the existence of a

contract dated 2013 though the defence has also mentioned an
agreement of 2010. I will restrict myself to the contract of 2013 since the
one of 2010 is disputed. The defendant was to undertake various
developments on behalf of the plaintiff on the subject land. No
commencement nor completion date was provided. I agree with the
plaintiff’s counsel that it was only expected that the first defendant would
execute his side of the agreement within reasonable time. The contract
period is therefore uncertain. That being the case, it is not possible to
hold that the cause of action arose in the year 2013 as by then even if
the first defendant was to have started the constructions immediately he
would need time to complete the constructions. The construction would
have taken three or even up to 5 years to complete. In the
circumstances it is only fair to hold that the breach only occurred after
the plaintiff realised that the defendant has gone against the terms as
they had agreed.

In the case of Zadock N Danda vs South Nyanza Sugar Co. Ltd

(2018) eKLR at parag 18 the court stated:
" It will therefore be without any basis to hold to the argument that the
cause of action arose 24 months post the commencement of the
contract since by then the contract had not been formally executed. The
date a course of action accrues depends on the nature and the
provisions of that contract. There are some straight forward and clear
contracts which speak for themselves on such an issue. A case at hand
are the monthly tenancies alluded to by the respondent herein. Such
contracts even if they are for 10 years still their terms are so clear that
failure to pay any due single monthly rent leads to execution and the
cause of action immediately therefrom accrues. But that is not the
position in this matter ….."

Since there were no strict timelines within which two carry out the
constructions mentions in the contract then the contention that the suit
was time barred hereby fails. The cause of action arose only after the
discovery by the plaintiff of the first defendant's mischief, though this
must be proved during the hearing by evidence. I also know note that
this is an unpleaded issue.

This court now find that the preliminary objection has no merit and
procedure to dismiss it

READ IN OPEN COURT THIS DAY OF 2023 IN THE

PRESENCE OF:

BEFORE HON JOYCE GANDANI CM

COURT ASSISTANT