Automated Summary
Key Facts
BENSON KIBUGI RIGII (Appellant) sued ANSELIMY AERODI ABENJIRA (Respondent) in the High Court of Kenya at Mombasa (Civil Appeal 77 of 2006) seeking a declaration of entitlement to vacant possession of Plot 9/22/XV Majengo, Mombasa, under a Chattel's Transfer Investment dated 20th November 1996. The Appellant alternatively claimed Kshs. 33,000/= plus interest for a loan default. The Respondent's defence admitted ongoing repayment installments via advocates but failed to plead statute of limitation in their written statement. The Trial Magistrate struck out the plaint as statute-barred, but the Appellate Court found the Respondent's pleadings excluded the limitation defence, rendering the preliminary objection invalid. The appeal was allowed, and the plaint restored for further proceedings. Judgment was delivered on 8th May 2008 by Judge F. Azangalala.
Transaction Type
Loan secured by property transfer under Chattel's Transfer Investment agreement
Issues
- The court determined that a notice of preliminary objection is not a pleading under the Civil Procedure Rules. The trial magistrate erred by upholding the preliminary objection based on limitation, as the defense did not include this plea and the objection was not a proper pleading.
- The court held that the respondent did not specifically plead the statute of limitations in their defense, as required by Order VI Rule 4 (1) and (2) of the Civil Procedure Rules. Since the limitation was not pleaded, the respondent could not rely on it for their preliminary objection, and the trial court's decision was incorrect.
Holdings
The court held that the respondent failed to plead limitation as required by Order VI Rule 4 of the Civil Procedure Rules, which precluded them from relying on the statute of limitations to defeat the appellant's claim. The court found that the respondent's defense, which admitted ongoing payments and revived the claim, did not include a plea of limitation. Consequently, the appeal was allowed, the preliminary objection dismissed, and the plaint restored to proceed with the suit. The judgment emphasized that a notice of preliminary objection is not a pleading and that the respondent's own defense excluded the limitation plea.
Remedies
- I accordingly set aside the ruling and order of the Learned Resident Magistrate dated 9th May 2006 striking out the appellant's plaint and substitute that order with one dismissing the respondent's preliminary objection. The appellant's plaint is restored and the suit should proceed in the usual way.
- The appellant will have the costs of the appeal.
Contract Value
33000.00
Legal Principles
The court applied the principle that a plea of limitation (statute of limitations) must be specifically pleaded in the defence under Order VI Rule 4 of the Civil Procedure Rules. Failure to plead limitation in the defence rendered the respondent's preliminary objection invalid, as the issue could not be raised for the first time in a preliminary objection. The judgment emphasizes that procedural rules require explicit pleading of statutory defences to preserve them for trial.
Precedent Name
Achola and Another v Hongo and Another
Key Disputed Contract Clauses
- The agreement contained a default enforcement clause stipulating that in the event of non-payment of Kshs. 33,000, the appellant would gain possession of the property and sell it to recover the debt. The court analyzed whether this clause was triggered by the respondent's alleged failure to comply with repayment terms, though the central dispute revolved around procedural validity rather than the clause's substantive interpretation.
- The Chattel's Transfer Investment agreement included a security interest clause where the respondent agreed to transfer Plot 9/22/XV Majengo to the appellant as collateral for the Kshs. 33,000 debt. This clause formed the basis of the appellant's claim to vacant possession and sale of the property to recover the outstanding amount.
Cited Statute
Limitation of Actions Act
Judge Name
F. AZANGALALA
Passage Text
- The respondent's defence does not plead limitation... The respondent's averment in paragraph 3... appears to admit the alternative claim of the appellant and the respondent's averment that he is continuing with installments revives the appellant's claim even if it may have been statute barred.
- Having considered the pleadings, the Grounds of Appeal, the submissions of counsel and the authorities cited, I have come to the conclusion that this appeal must be allowed.
- I accordingly set aside the ruling and order of the Learned Resident Magistrate... and substitute that order with one dismissing the respondent's preliminary objection. The appellant's plaint is restored and the suit should proceed in the usual way.
Damages / Relief Type
- Declaration of entitlement to vacant possession of Plot 9/22/XV Majengo for purposes of selling the property under Chattel's Transfer Investment agreement dated 20th November 1996
- Refund of Kshs. 33,000/= plus interest at 25% p.a. from 20th November 1996 until payment in full