1. What is before court for determination is the 3rd and 4th Defendants notice of preliminary objection dated 19/9/2023. The same is raised on the following grounds; -
a. That this Honourable court lacks jurisdiction to hear and determine the suit filed herein to the extent that the suit is time barred pursuant to the express provisions of Section 67 of the Kenya Roads Act No 2 of 2007.
b. That the suit dated 28th December 2022 should be struck out and/or dismissed as the same is an abuse of the courts process and a waste of the courts precious time.
2. This suit was instituted by a plaint filed before court on 28/12/2022. The gist of the same is a claim against the Defendants for general damages for compulsory acquisition of the Plaintiff’s land situated at Waa/Maganyakulo without compensation. That the Defendants further demolished the Plaintiff’s house without compensation despite the fact that other persons were compensated for the same back in the year 1971. To date the Defendants have failed to offer the Plaintiff any compensation hence this suit.
3. The preliminary objection was dispensed by way of written submissions. The 1st, 2nd and 5th Defendants are in support of the preliminary objection and filed their submissions before court electronically. The 3rd and 4th Defendant’s submissions were filed before court on 15/2/2024. The court has considered all the submissions on record.
Determination
4. The main issue for determination is whether the preliminary objection is merited. The often-cited authority on preliminary objections in limine is the case of Mukisa Biscuits Manufacturing Co. Ltd -vs- West End Distributors [1969] E.A. 696 where Law JA at page 700 stated;
“… a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
5. At page 701 Sir Charles Newbold P added;
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point- of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
6. From the Plaint, the Plaintiff pleads that the suit was acquired in the year 1971. There is no contestation about the year when the alleged acquisition took place and therefore no need arises to ascertain this fact. The preliminary objection on the suit being time barred by dint of section 67 of the Kenya Roads Act No. 2 of 2007 is properly raised as a pure point of law.
7. Section 67 (b) of the Kenya Roads Act No. 2 of 2007 provides;
67. Where any action or other legal proceeding lies against an Authority for any act done in pursuance or execution, or intended execution of an order made pursuant to this Act or of any public duty, or in respect of any alleged neglect or default in the execution of this Act or of any such duty, the following provisions shall have effect;
(a) …
(b) such action or legal proceedings shall be instituted within twelve months next after the act, neglect, default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof.
8. From the pleadings, it is the Plaintiff’s case that the compulsory acquisition of the suit property herein was undertaken in the year 1971. Indeed, this is exactly 53 years ago. The pleadings herein have answered the question as to when the cause of action arose. Section 67 of the Kenya Roads Act no 2 of 2007 provides the time limit within which a suit can be brought for compensation within any acts that occurred in the cause of execution of the duties stipulated under the Act. Clearly 53 years is way beyond the time which has been provided by statute to bring an action being 12 months and 6 months.
9. Section 26 of the Limitations of Actions Act allows for extension of the limitation period as follows;
“Where in the case of an action for which a period of limitation is prescribed, either-
a) The action is based upon the fraud of the Defendant or his agent, or of any person through whom he claims or his agent; or
b) The right of action is concealed by the fraud of any such person as aforesaid; or
c) The action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the Plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.
10. I however note that fraud or mistake has not been pleaded to invoke the above provisions. A suit barred by limitation is a claim barred by law, hence by operation of law, the Court cannot grant the relief sought. I am guided by the dictum in the case of Iga v Makerere University [1972] EA, the Court had this to say on the Law of Limitation;
“A Plaint which is barred by limitation is a Plaint barred by law. Reading these Provisions together it seems clear that unless the Applicant in this case had put himself within the limitation period by showing grounds upon which he could claim exemption, the Court shall reject his claim. The Limitations Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for and when a suit is time barred the Court cannot grant the remedy or relief sought.”
11. Moreover, equity aids the vigilant and not the indolent. It is also trite that delay defeats equity. In the case of Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR the court quoted the following passage from Snell’s Equity by John MC Ghee Q.C. (31st Edition) at page 99:
“The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing.”
12. Consequently, the Preliminary Objection dated 19/9/2023 is upheld. The Plaintiffs’ suit is hereby struck out for being time barred. I make no order as to costs.
Orders accordingly.
Ruling dated signed and delivered this 2nd day of July 2024.
No appearance for the Plaintiff
Muhamad Abushiri Mkulu Plaintiff present virtually
Ms. Lenjo for the 1st, 2nd and 5th Defendant
Ms. Chumu Holding brief for Muchemi for the 3rd and 4th Defendant
Mr. Daniel Disii – Court Assistant