Analysis & Determination
5.The sole issue for determination is whether the defendant/ applicant has made up a case for being granted the orders sought.
6.To put matters into context, this suit was filed on 25th October 1995. The plaintiff averred that by an agreement evinced in writing and dated 12th June,1992, she entered into contract with the Defendant of converting, modifying and fitting 3 old roller mills originally designed for wheat milling to be converted for maize milling purposes at an agreed cost of Ksh. 484,000/-. She claimed the defendant breached the contract by failing to complete the aforesaid work and abandoning the same. She pleaded that she had paid the defendant Ksh. 434,000/= and that she engaged another contractor to complete the aforesaid works at a costs of Ksh. 322,506/=. She therefore prayed for judgement against the defendant for special damages of Ksh. 322,506; General damages for breach of contract, interest and costs of the suit. The defendant filed a defence on 22nd December, 1995 denying the Plaintiff’s case and asserted that the plaintiff frustrated the completion of the said works by failing to supply items the contract required her to supply.
7.In a judgement delivered on 31st January,2005, Musinga J (as he then was) entered judgement for the plaintiff in the sum of Ksh. 167,199/= plus interest at court rates from the date of filing suit until payment in full plus Ksh. 100,000/= as general damages for breach of contract which was to attract interest at court rates from the date of judgement until payment in full. Subsequently, the defendant filed a notice of Appeal dated 7th February,2005.
8.On 8th June,2005, a certificate of costs in the sum of Ksh. 128,450.00 was issued in favour of the Plaintiff. Thereafter the plaintiff in an attempt to execute against the judgement obtained warrants of attachment of movable goods of the Defendant dated 13th July,2005. On 22nd September 2005 a prohibitory order was issued by this court prohibiting and restraining the defendant from transferring and charging the property known as Bahati/Kabatini Block 1/25 which is registered in his name. Since then nothing much seems to have happened to the case until this application was filed on 18 May,2023.
9.Central to the issues before court is the interpretation to be given to Section 4 (4) of the Limitation of Actions Act, which provides as follows: -
10.The purpose of the above section is to eradicate stale claims and stop the vexing of litigants. Where a judgment creditor elects to sleep on a decree, he is estopped from waking up from his slumber after 12 years have lapsed to claim his right. The law bars such claims.
11.In the case of Willis Onditi Odhiambo vs Gateway Insurance Company Limited (2014) eKLR, the Court of Appeal held that the term ‘action’ covers execution of judgments and that the time within which to execute a decree could not be extended once expired. In that case the Court of Appeal stated as follows:
12.In the instant case 18 years have lapsed since the judgement, decree, certificate of costs and the said Prohibitory order were issued. The Judgement delivered on 31st January,2005 and the subsequent Decree issued on 22nd March, 2005 and the Certificate of costs and any attachment are therefore time barred. It appears the Plaintiff lost interest in pursuing her rights and there is no justifiable ground to continue having by the said prohibitory order in place.
13.Consequently, I find merit in the Application and I proceed to issue the following orders: -1.A declaration be and is hereby issued that the Judgement delivered on 31st January,2005 and the subsequent Decree issued on 22nd March, 2005 and the Certificate of costs and any attachment have been caught up by the Limitation of Actions Act Sections 4(4) and the same can no longer be executed.2.A Prohibitory Order issued on 22nd September,2005 and registered against Bahati/Kabatini Block 1/25 on 5th December,2005 be and is hereby lifted unconditionally.3.Each party to bear their own costs