1. I have considered the Notice of Motion Application dated 22nd January, 2024 together with the affidavit filed in support of even date and the replying affidavit sworn in opposition to the same on 15th February, 2024 the applicable law and the submissions of the parties.
2. The Application seeks to strike out the Plaintiff’s Amended Plaint.
3. The background to the present application is that the Plaintiff and the 1st Defendant entered into a contractual relationship wherein the 1st Defendant advanced a facility worth Kenya Shillings Fifty Million (Kshs. 50,000,000) which was secured by a first legal charge over Title Number: Dagoretti/Kinoo Dagoretti/Kinoo 4927; Good Hope Apartments. The facility remained unpaid prompting the Bank to initiate its power of sale.
4. The Plaintiff contested this action by challenging the intended sale. However, the facility was subsequently repaid in full through a takeover by Equity Bank, thereby terminating the contractual relationship between the parties. Later, the Plaintiff moved the Court orally to amend the Plaint which was duly granted.
5. Prior to the above, the Plaintiff initiated legal proceedings against the Defendants vide HCCOMM No. 124 of 2018 - Trade Circles Limited Versus Family Bank Limited & Leakey’s Auctioneers Limited seeking inter alia a permanent injunction restraining the Defendants from disposing of the property known as Dagoretti/Kinoo 4927; Good Hope Apartments. This suit was dismissed for want of prosecution.
6. On 8th October 2019, the Plaintiff filed another suit against the Defendants before the Environment and Land Court in Thika, being ELC Case No. 152 of 2019 - Trade Circles Limited Versus Family Bank Limited & Leakey’s Auctioneers Limited. This suit having been filed during the subsistence of the first suit was transferred to the High Court (Commercial & Tax Division) at Milimani.
7. The above matter was allocated case number HCCOMM NO. E234 of 2019 - Trade Circles Limited Versus Family Bank Limited & Leakey’s Auctioneers Limited. The Plaintiff was indolent, and the suit was dismissed on 14th November 2019. A year later, the Plaintiff sought to reinstate the suit. Parties exchanged written submissions for the Court’s consideration and the reinstatement was allowed.
8. The Applicant submitted that the Plaintiff is advancing a cause of action, where the loan has been taken over by another Bank and where the loan was repaid in full. Counsel explained that the Defendant no longer has an interest registered against the property and the amendment therefore ought not to be granted.
9. As regards the claims for defamation, counsel contended that this court has no jurisdiction to hear the same and once again the amendment ought not be allowed.
10. The Respondent submitted, in summary that the defendant has submitted on technicalities, which have not been substantiated. Counsel was of the view that the Plaintiff filed the amended plaint with leave of the court and was duly served on the respondent.
11. Having considered the above, it is evident that the Amended Plaint contains prayers that are either moot or are time barred. For instance, the Plaintiff introduced a claim for defamation, libel, and further sought a retraction of the newspaper advertisement dated 19th March, 2018.
12. The prayer in relation to the retraction of the article has been rendered moot. In my view, given the passage of time, the article having been published over 6 years ago, and because the facility was settled in full after being taken over by Equity Bank, a retraction at this point, would not serve any purpose.
13. Additionally, the prayer for a permanent injunction against the Defendants cannot be granted because the Defendant no longer holds any registered interest in the property. Therefore, the request for a permanent injunction against the property is redundant and would have no meaningful effect.
14. Furthermore, the claim for libel, malicious prosecution, and defamation is statute-barred. It ought to have been filed within a period of twelve months from the date that the cause of action accrued. This timeline is in accordance with Section 4(2) of the Limitation of Action Act Cap. 22.
15. Based on the record, the cause of action would have arisen at the time of the impugned advertisement, which by the Plaintiff’s own admission was sometime in the year 2018. This did not happen.
16. In the premises, the amendment seeking damages for malicious publication and defamation arising from the actions of the defendants over five years ago from the date of the application was statute barred and illegitimate.
17. It is trite that a claim that is barred by statue cannot be introduced by way of amendment. This is in line with position held the decision of the High Court in Julia Akelo Kuguru v Seth Lugonzo & Another H.C.C. No. 197 of 2001 (Ringera, J.) who reiterated the principle set out by the court of appeal and as expressed by Shah, J.A in the following terms:
“The Learned Judge was right in saying that Oder V1 rule 3(5) does not permit an amendment to be made to complete a defective cause of action where the statute of limitation would have barred the claim”
18. While the said amendments may have been filed with the leave of the court, the Amended Plaint still does not disclose a cause of action because the claims are time barred. This court does not intend to sit on appeal in relation to the leave granted to amend the Plaint, but finds that it cannot proceed to hear and determine a suit based cause of action that is statutorily time barred because it has no jurisdiction to do so.
19. Having found the above, I am satisfied that Amended Plaint does not disclose any reasonable cause of action concerning the subject property that warrants a full trial.
20. I state the above because the final prayers sought at (a) seeking a declaration that the intended sale is irregular and declaring the same null and void has been overtaken by events. In any event the sale did not take place. The final prayer (b) seeking an injunction to prevent the defendants from selling the property, has similarly been overtaken by events, and is therefore moot, or would serve no useful purpose. Finally, the prayers seeking special and general damages arising primarily from defamation are time barred by statute.
21. Based on the reasons set out above, I find and hold that the application is with merit. The Amended Plaint dated 4th December, 2023 is hereby struck out with costs.