Jim Matia Bandi v Kenya Commercial Bank Limited & Madison Insurance Company [2010] KEHC 2273 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Case 34 of 2007

JIM MATIA BANDI................................................................................PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK  LIMITED.........................................1ST DEFENDANT

THE MADISON INSURANCE COMPANY...........................................2ND DEFENDANT

RULING

PRELIMINARY OBJECTION

Background

In this Commercial Law matter the plaintiff filed suit in person on 5th March 2007. He made claims against a bank 1st defendant and an Insurance Company 2nd defendant whereby he claims that he had been deprived of his standing ordered premiums that he had ordered the bank to remit to the 2nd defendant.

The bank and Insurance Company’s action was irregular. He prays for compensation loss and damages.

Preliminary Objection

3. Both the 1st and 2nd defendant separately sought for the striking out of the plaintiffs, plaint by the 1st defendant, that the suit is time barred by the 2nd defendant.  By the 2nd defendant, that the particularization of the claims made was not done according to order VI r 8 Civil Procedure Rules (The 1st defendant was absent from these proceeding.)

4. In reply, the advocate for the plaintiff who has come onrecord stated that we cannot go into the issue of technicalities under order XLIV r 6 Civil Procedure Rules

Findings:

5. Jurisdiction goes to the root of a case. The claim has been filed for matters  in the early 1990’s. These claims are time barred but the plaintiff had an opportunity to seek leave to file the said suit out of time.

6. The plaint required to be particularized. This was not fatal and an amendment could have been taken.

7. This court herein rules that the preliminary objection be and is hereby upheld on the issue of limitation of action.

8. This suit is time barred. It is struck out. I make no orders as to costs because the issue was raised in 2008 about a year later. The delay was inordinate.

9. Costs to the defendant No. 2 but not defendant No 1 as they are absent.

Dated this 29th day of April, 2010 at Eldoret

M. A. ANG’AWA

JUDGE

22/04/2010

Advocate: -

Angu Kitigin advocate instructed by the Firm of M/s Angu Kitigin & Company Advocates

for the Plaintiff

W.M. Simiyu advocate instructed by the Firm of M/s W.M. Simiyu & Company

Advocates for 2nd Defendant,

A. Yano advocate instructed by the Firm of M/s Yano & Company Advocates

for the 1st Defendant.