IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)

CIVIL CASE NO. 861   OF 2009

          By this application which is brought by way of a Chamber Summons dated 14^th July, 2010, and taken out under Order VI Rule 13 (1) (a) and (d) of the Civil Procedure Rules, the Defendant prays from the court the following orders –

The application is supported by the annexed affidavit of Francis Mbugua Giathi, the Applicant himself, sworn on 14^th July, 2010. It is based on the ground that the suit is based on a sale agreement made on 14^th March, 1994, enforcement whereof is time barred under the Limitation of Actions Act. 

          Opposing the application, the Respondent swore a replying affidavit on 30^th September, 2010, by which he concedes that the suit arises out of an agreement of sale for land by the Applicant borne in an agreement for sale dated 14^th March, 1994. A copy of the said agreement is attached to this application. In terms of the said agreement, the purchase price was agreed at Kshs 610,000/-. The sum of Kshs 460,000/- was instantly paid to the applicant on the date of execution of the agreement of sale receipt of which he acknowledged. The Respondent avers that he made a further payment of Kshs 100,000/- to the Applicant towards of the fulfillment of the terms of the sale agreement, a copy of the receipt of which is attached to his replying affidavit. He further states that on 16^th May, 2002, he paid Kshs 50,000/- in full and final settlement of the purchase of the plot to the Applicant a copy of which receipt is also attached to the replying affidavit. The Respondent, therefore, denies that there is any balance of the purchase price due and payable to the Applicant and alleges that the gross misconduct of the applicant in failing to effect performance of the sale agreement amounts to fraud which is not permissible in a quest for limitation of actions. He therefore urges this court to dismiss the application with costs. 

 Opposing the application on behalf of the Respondent, Mr. Marete argued that the suit was not vexatious or an abuse of the process of the court as it was brought within the confines of the law. He submitted that it is not disputed that the agreement was made on 14^th March, 1994 and that the Defendant received Kshs 460,000/- . The transaction was supposed to be finalized within three months. He maintained that on 11^th May, 1994, his client paid to the Applicant a sum of Kshs 140,000/- and that it is evident from the face of the application that the Applicant denies receipt of the said sum of Kshs 140,000/- and claims that it is still due and payable. He referred to a receipt dated 11^th May, 1994, acknowledges receipt of Kshs 100,000/- received from him in payment of the purchase of the commercial plot at Limuru as per agreement. 

Mr. Marete finally submitted hat the applicant had not been forthright in this matter and there was an element of fraud under Section 26 (a) and (b) of the Limitation of Actions Act. He argued that the key word was an unconscionable act as pleaded in Paragraph 12 of the prayer. The several factors which have led to this state of affairs constitute misconduct on the part of the Respondent. He also contended that Section 26 ousts the limitation period in circumstances such as this.

Finally, he submitted that the authority relied on by the Applicant was distinguishable as it related to extension of time in cases of contract. In this case however, the Respondent is not applying for an extension of time but relying on the law as it stands. Where there is an allegation of fraud time does not run until fraud is discovered. The Respondent is therefore left with no alternative but to come to court and seek specific performance. He asked the court to dismiss the application. Mr. Mwaura did not reply to these submissions since, in his view, no points of law had been raised.

Having considered the pleadings and the rival submissions of the respective counsel, I find that the first issue to be determined is the competence of the application before the court.  In the first instance, I note that this application basically seeks the striking out of the Plaint under Order VI Rule 13 (1) (a) and (d) of the Civil Procedure Rules. For the purposes of this application, that Rule stipulates as follows –

(The above provisions of this rule are now reproduced verbatim in Order 2 Rule 15 of the current Civil Procedure Rules, 2010).

Although this point seems to have escaped the attention of the learned counsel for the Applicant, the inclusion of the Applicant’s affidavit sworn on 14^th July, 2010, in support of the application is an affront to Rule 13 (2) of the Civil Procedure Rules as stated above. The said sub rule does not allow for affidavit evidence in support of applications for striking out pleadings on the ground that they do not disclose a reasonable cause of action. If the application had been brought solely on the ground that the suit was an abuse of the process of the court, it would have been accommodated. However, since the application is based not only on the failure to disclose a reasonable cause of action but also an alleged abuse of the process of the court, the same is incurably defective and cannot be entertained.   

Orders accordingly.