Jane Ndunge Kitivo v Savannah Development Co. Ltd, Barclays Bank of Kenya Ltd, Irene Nyokabi Mwangi & Housing Finance Company of Kenya Ltd [2010] KEHC 2934 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 214 of 2008

ANE NDUNGE KITIVO …………………………………………………….PLAINTIFF

VERSUS

SAVANNAH DEVELOPOMENT CO. LTD. ……………………………..1ST DEFENDANT

BARCLAYS BANK OF KENYA LTD. …………………………………….2ND DEFENDANT

IRENE NYOKABI MWANGI ……………………………………………….3RD DEFENDANT

HOUSING FINANCE COMPANY OF KENYA LTD. …………………4TH DEFENDANT

RULING

1. The Chamber Summons dated2nd October 2009is brought under the provisions of Order VI rules 13 (1) (a) (b) & (d) and 16 of the Civil Procedure Rules by the 4th defendant.The applicant seeks for orders that the amended plaint dated 29. 9.08 be struck out with costs to the 4th defendant.

2. The application is premised on the grounds that the suit property known as Parcel Number LR NAIROBI/BLOCK 82/5497 Phase IV No. 538is registered in the name of the 3rd Defendant and is correctly charged to the 4th Defendant to secure a facility of Ksh.2. 500,000/-.The plaintiff’s cause of action is founded on a breach of contract for parcels of land.That contract was entered into in 1997 between the 1st defendant and the plaintiff which renders the plaintiff’s suit statute barred.

3. The suit property was sold and transferred to the 3rd defendant by the 1st Defendant thus the plaintiff’s cause of actionin the suit only be against the 1st Defendant.The above grounds are expounded in grater details by the matters deposed to in the supporting affidavit of Joyce Njoroge an Assistant Manger with the 4th defendant sworn on2nd October 2009. They have annexed a copy of the certificate of lease which shows the 3rd defendant was registered as the proprietor of the suit premises on 11. 1.2008 and a charge is registered in favour of the 4th Defendant.

4. This application was opposed by the plaintiff who relied on the replying affidavit sworn on28th December 2001. She contends that a cause of action which was based on contract is continuing and is no time barred.The application to strike the suit is also faulted as a mere technicality meant to defeat the whole suit.This application raises two issues for determination.Firstly, the suit against the 4th defendant is a non starter because the suit premises is registered in the name of the 3rd defendant.Secondly, whether the suit is statute barred.

5. The claim by the plaintiff as pleaded in the plaint in the following words:-

“4. That on or around the 5th June 1997 the 1st defendant agreed to sell and plaintiff agreed to purchase Land Parcel No. LR. Nairobi/Block 82/5497 Phase IV House No. 538.

5. That in furtherance of the above stated the plaintiff and 1st defendant did enter into a sale agreement on or around the aforestated date and plaintiff proceeded to pay deposit of Ksh.250,000/- with reference to the suit premises.

6. That however having been given possession of the suit premises, the 1st defendant did not furnish the plaintiff with the title deed thereof and further all efforts by the plaintiff to complete payment of the purchase price balance have been unsuccessful as the 1st defendant has since refused, failed and/or neglected to accept payments thereof.”

6. They claim this on contract ought to have been brought in court within six (6) years since the cause of action arose.Going by the prayers sought the plaintiff is basically seeking to compel the defendants to accept the balance of the purchase price and register the transfer of the suit premises in her favour.The transfer referred to is the transfer of land thus one can comfortably say that the suit ought to have been filed after 12 years from when the cause of action arose.I thus do not find the suit time barred.However the suit does not disclose any cause of action or any claim against the 4th defendant.For reasons that the plaintiffs has never been the registered proprietor of the suit premises.If she had a contract with the 1st defendant, the 4th defendant has absolutely no connection with that contract.The certificate of lease of this property shows that the suit premises was registered in the name of the 3rd defendant on11th January 2008. The 3rd defendant charged the property to the 4th defendant.Accordingly for the above reasons I find no difficulty in striking the suit against the 4th defendant with costs.

RULING READ AND SIGNED ON12TH MARCH 2010ATNAIROBI.

M.K. KOOME

JUDGE