1.The preliminary objection dated and filed on February 17, 2023 refers. It seeks to have the plaintiff’s suit be struck out on grounds that it is time barred on account of section 4 (2) of the Limitation of Actions Act. There is only one point of law. The other points are matters within the compliance of order 2 rules 15.
2.The said rule provides as follows: -Striking out pleadings [order 2, rule 15](1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)it discloses no reasonable cause of action or defence in law; or(b)it is scandalous, frivolous or vexatious; or(c)it may prejudice, embarrass or delay the fair trial of the action; or(d)it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.(2)No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made.(3)So far as applicable this rule shall apply to an originating summons and a petition.”
3.In the locus classicus case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd  EA 696, on preliminary objections, the court made this pertinent observation. It said: -
4.In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda  eKLR, Justice Kiarie Waweru Kiarie, summarized the preliminary objection as seen from two of the judges in Mukisa Biscuit Manufacturing Co Ltd(supra):-
5.Justice Prof J.B Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro v Mbaja  eKLR:
6.To be able to ascertain the cause of action. The court will rely on the plaint. In the paint filed on June 19, 2020 the plaintiff stated that the plaintiff was an importer while the defendant was a bailee/ carrier/ transporter. The claim was for special damages suffered as a result of the negligence of the defendant, where the defendant failed to ensure the plaintiff’s consignment was delivered in the condition as placed in its possession.
7.The defendant on the other hand denied the existence of a contract of consignment between it and the plaintiff. The defendant pleaded negligence on the part of the plaintiff for the damage caused to the consignment.
8.The preliminary objection was disposed of by way of written submissions. The defendant submitted that the plaintiff’s claim was based on tort, as it pleaded on negligence and breach of duty of care on the part of the defendant, which led to the damage of the plaintiff’s consignment. This being a tortious claim, the suit was therefore time barred by dint of section 4 of the Limitation of Actions Act.
9.The plaintiff submitted that the claim was based on a breach of contract, pursuant to an agreement between the parties, where the defendant as common carriers/ transporters and or bailee failed to ensure the safety of the consignment placed before it by causing it to be damaged.
Analysis And Determination
10.The preliminary objection proceeds on the premise that the suit is time barred. I will set out paragraph 7 of the plaint that they raise as being a source of tort: -
11.From the above, it is clear that the claim as pleaded, is a claim for breach of contract. The loss is said to have occurred on February 17, 2015. The plaintiff had up to February 17, 2021 to file civil suit. This suit was filed on June 19, 2020 and which was filed within time.
12.Section 4 (1) of the Limitation of Actions Act states;‘The following actions may not be brought after the end of six years from the date on which the cause of action accrued.a.Actions founded on contract’
13.It is the defendant who pleaded particulars of negligent in tort, but not the plaintiff. The upshot of the forgoing is that the preliminary objection is misplaced and untenable in law.
14.On the issue of costs, it is settled that the same follows the event. That is the import of section 27 of the Civil Procedure Act. The court reserves its discretion on whether to award costs to either party. This was well enunciated by the Supreme Court in the case ofJasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others  eKLR. This is a preliminary application and having sustained the suit, costs are awarded to the plaintiff.
15.Following the foregone discourse, the upshot is that the following orders do hereby issue: -a.The notice of preliminary objection dated February 17, 2020 is without merit and is hereby dismissed;b.Costs to the plaintiff.