High Court reaffirms its stand on the law of limitation

Summary
In the case of Eric Godwin Mwadime trading as Mwadime Enterprises vs. Kenya Power and Lighting Ltd. and another (unreported) High Court Civil Appeal no. 105 of 2022, Mombasa, The High Court of Kenya affirms that a suit filed out of time is barred by limitation. The court also looked at the issue of costs. The advocate for the successful party was Okello Kinyanjui and Company LLP.

Background
The brief facts leading up to the appeal were that on the 28th of January, 2015 a fire broke out and completely razed down the timber yard belonging to Eric Godwin Mwadime trading as Mwadime Enterprises (the appellant) on plot no 144/XI. On the 26th of January, 2018, just two days shy of the limitation period, the appellant instituted a claim against the Glomally Investments Ltd (1st respondent), who was the owner of a neighbouring timber yard. The appellant accused the 1st respondent of negligence in causing the fire. The 1st respondent denied that the fire was started in its yard and instead blamed Kenya Power and Lighting Ltd. (the 2nd respondent) who was not a party at the time. The appellant therefore decided to “join” the 2nd respondent into the suit by way of an amended plaint curiously dated and curiously filed on the 25th of January, 2018 (one day before the appellant had instituted suit)! The “amended plaint” was allegedly served on the 2nd respondent. The 2nd respondent filed its defence documents and proceeded to file an application to strike out the suit against it for being an abuse of the court process. The 2nd defendant contended that the “amended plaint” having been allegedly filed and served before the plaint was instituted, then the proceedings against the 2nd respondent amounted to an abuse of the court process.

Faced with the 2nd respondent’s application the appellant responded by saying that the date of filing was a typographical error! The appellant went on to say that the amended defence was actually filed on the 1st of October, 2018. With this admission the 2nd respondent filed a notice of preliminary objection to the effect that the suit was time barred. The magistrate heard the submisions of the parties and found that the appellant’s suit against the 2nd respondent was time barred. He ordered the appellant to pay costs to the 2nd respondent. The appellant being dissatisfied with this ruling filed an appeal on four grounds, i.e.:

1. The learned magistrate erred in law and in fact in finding that the cause of action in the suit was solely tortious and in finding that the 2nd respondent had been enjoined after the expiry of time.

2. The learned magistrate erred in law and in fact in disregarding evidence that the relationship between the appellant and the 2nd respondent was contractual and in finding that the suit against the 2nd respondent was not based on contract.

3. The learned magistrate erred in law and in fact in disregarding stare decisis.

4. The learned magistrate erred in law and in fact in ordering the appellant to bear the costs of the application.

Findings
The High Court identified the following issues, i.e.

1. Whether the learned magistrate erred in sustaining the preliminary objection.

2. If the answer to (a) was in the affirmative what remedies should issue, and

3. Who bears the costs?

On the issue regarding whether the learned magistrate erred in sustaining the preliminary objection, the High Court went even deeper than the magistrate and analyzed the manner in which the 2nd respondent was allegedly brought into the suit. The High Court noted the fact that an application had been filed to strike out the suit on the ground that it was an abuse of the process of the court and the fact that a preliminary objection followed thereafter. Regarding limitation, the High Court noted that the appellant’s argument was that since there was an admission that the suit against the 2nd respondent, based on negligence, was filed on the 1st of October, 2018, then the said suit was time barred. The appellant’s argument was that the suit was based on contract. The court also noted that a cursory look at what was described as the “amended plaint” was actually filed in court, one day before the plaint was instituted and that this raised serious eyebrows. The court found that at the time, the 1st respondent filed its defence, the 2nd respondent was not a party. The court also found that there could not have been an amended plaint filed on the 25th of January, 2018 and even if the same had been so filed, nothing could justify the fact that summons were apparently signed on the 3rd of October, 2018, which is in direct contravention of the requirements of the Civil Procedure Rules, which require summons to be signed not later than thirty days after the institution of a suit. The process undertaken by the appellant contravened many other procedural rules.

Regarding the argument by the appellant that the suit was allegedly based on contract, the High Court was of the view that, firstly, there was no proper amended plaint on record and that what was filed in the court record was an abuse of the court process in its unadulterated form whose authenticity could not be ascertained by anyone other than the appellant. The High Court found that the appellant had backdated the amended plaint and interfered with the court records to make it seem like the amended plaint was filed within the limitation period. Secondly, the High Court found that the appellant’s claim against the 2nd respondent was based on negligence which is a tort. Thirdly, that any proceedings against the 2nd respondent were instituted well after the limitation period provided in section 4 (2) of the Limitation of Acts Act, Cap 22 and as such the appellant’s suit against the 2nd respondent was, indeed, time-barred. The High Court, therefore affirmed the ruling of the magistrate’s court.

The court therefore dismissed the appeal and went straight into the issue of costs. The court foumnd that section 27 of the Civil Procedure Costs, gives a court discretion to issue costs, provided that costs should normally follow the cause, i.e., be issued to the successful party, except for good reason shown. The court, however considered it to be onerous to condemn the appellant to costs once again and decided that each party would bear the costs of the appeal.

Our comments
The ruling was good. It touched on the intricacies of properly joining another party into a suit and that too within the limitation period. Very importantly, the High Court did not take seriously, the decision of the High Court in South Coast Project Ltd. vs. Kenya Power & Lighting Co. Ltd. [2016] eKLR. In the South Coast Project Ltd. vs. Kenya Power and Lighting Co. Ltd. (supra) the judge in that case had wrongly given the impression that if someone raises a challenge on limitation then the court had a discretion to amend the plaint so as to bring the suit within the limitation time-lines. The law declared by the High Court in the said decision of the High Court in South Coast Project Ltd. vs. Kenya Power and Lighting Co. Ltd. (supra) is bad law and it is good that the High Court in the present case disregarded the decision in the South Coast Project Ltd. vs. Kenya Power and Lighting Co. Ltd. (supra) case.

However, the High Court’s finding on costs does not appear to be well-reasoned. A successful party should, in our view, only be denied costs if that party has done something wrong and not because it would be onerous on the losing party. In Kenya Maritime Authority vs. Patrick Mutua Mbithi 2012 eKLR the High Court of Kenya had occasion to comment on section 27 of the Civil Procedure Act and quoted verbatim the arguments made by one of the parties in the case, i.e.:-

“…costs though in the discretion of the judge must normally “follow the event” unless the judge for “good reason” orders otherwise. These two prepositions, your honour, are nothing new and is the position at common law. The English Court of Appeal said in Smiths Ltd. Vs. Middleton [1986] 2AII ER (referred to in the respondent’s irregularly filed submissions) where the court said “the discretion like any other discretion, must be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case.” This Honourable Court speaking through the Honourable Mr. Justice Hayanga, in Robert Gichobi Kamundo vs. District Magistrate I Gichugu and 2 others (unreported) HC Misc. Application No. 1052 of 2000 (Applicant’s list of Authorities No. 5) cited with approval the statement by May L.J in Lipkin Gorman vs. Karnale Ltd [1989]1WLR 1390, which said:

“In making order for costs a court exercises a discretion, doing justice to all the circumstances of the case but bearing in mind the underlying principle that the winner whoever may be described as the winner is entitled to costs.”

The decision can be found on the following link, i.e., https://1drv.ms/b/s!AoBLduXPOXm3hdknK0q706SawABuug?e=XTqRC2