Mohamed Ali Taib v Salim Agil Said [2021] KEHC 8470 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL SUIT NO. 88 OF 1996

MOHAMED ALI TAIB....................................................PLAINTIFF

-VERSUS-

SALIM AGIL SAID......................................................DEFENDANT

RULING

1. The subject matter of this Ruling is the Notice to Show Cause issued on 21st December, 2020 and taken by the Plaintiff seeking the Defendant to explain why execution should not be commenced against him by having him arrested and committed into a civil jail with respect of a Decree in the sum of Kshs.22,495,622. 05.

2. A brief background of this matter would suffice.  This suit was instituted by the Plaintiff vide a Plaint dated 22nd February, 1996 whereof the Plaintiff claimed against the Defendant Kshs.3,851,250. 00. It was alleged that the amount was owing by the Defendant to the Plaintiff in respect of goods sold and delivered by the Plaintiff to the Defendant sometimes during the year, 1994. The Defendant, on the other hand, filed a Statement of Defence on 27th May, 1996, wherein he admitted being indebted to the Plaintiff but alleged that the value of the goods delivered to him was Kshs.2,800,000/= and not Kshs.3,851,250. 00 as claimed in the Plaint. He further added that he was experiencing financial difficulties and was willing to settle the debt in monthly installments of Kshs.250,000/= until payment in full.

3. The matter culminated into a consent Judgment whereby it was agreed that the Defendant pays to the Plaintiff a sum of Kshs.3,851,250. 00 with an interest rate of 12% per annum until payment in full.

4. Nonetheless, it has now been brought to the attention of this court that the Defendant has never paid the said sum and further that the original court file could not be traced from the court registry.

5. Vide a Notice of Motionapplication dated 20th September, 2019, the Plaintiff sought and was granted orders for the construction of the instant skeleton file which I have keenly read through. The Notice to Show Cause was orally argued on 10th February, 2021 with Mr. Mwadzogo appearing for the Plaintiff whilst the Defendant appeared in person.

6. The Defendant submitted that his means have been diminished and therefore he does not have any capacity to pay the entire amount claimed. He told the court that he can only afford to pay Kshs.1,200,000/= in defraying the amount claimed in the Decree and further denied the debt of Kshs.22,497,872. 05 being the total amount claimed.

7. On the part of the Plaintiff,  Mr. Mwadzogo, his Counsel, submitted that

the amount of Kshs.1,200,000/= which the Defendant wished to pay in defraying the debt was unreasonable in the circumstances. He sought the court to allow the Notice to Show Cause as presented.

ANALYSIS AND DETERMINATION

8. Having set out the respective parties’ positions as above, while considering the record on its entirety as presented in the skeleton file, it behooves  the court which is expected to apply, and not ignore the law in all matters before it, and consider a pertinent and ex-facie point of law which touches on the jurisdiction of this court with regard to the matter at hand.

9. I have noted that the matter was settled by a consent Judgment entered way back in the year 1996. The Decree in favour of the Plaintiff as annexed to the Notice to Show Cause was issued way back in the year 2000 which is over six years ago.

10. Section 4 of the Limitation of Actions Act provides that actions founded on Contract may not be brought after the end of six years from the date on which the cause of action accrued.  The law as stipulated by the said Act expects the Plaintiff to exercise reasonable diligence and take steps in his own interest.

11. The gist of my finding above is that the issue of Limitation goes to the jurisdiction of this court to entertain the enforcement of the claim sought by the Notice to Show Cause.  If the same is found to be time barred, then this Court would have no jurisdiction to entertain the same.

12. I further hold the view that even if the issue of limitation is not raised by a party to the proceedings, since it is a jurisdictional issue, the court which is expected to apply the law, cannot entertain a suit which it has no jurisdiction over.

13. And to demonstrate this, the decision of the Supreme Court in the case of Nasra Ibrahim Ibren ...Vs... Independent Electoral and Boundaries Commission & 2 Others, Supreme Court Petition No. 19 of 2018 is relevant.  In this case, the court stressed the fact that jurisdiction is everything and that a court may even raise a jurisdictional issue suo motu. It said:-

“Ajurisdictional issue is fundamental and can even be raised by the court suo motu as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” vs. Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus:

“25. What I understand the Court to have been saying

Is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…” (Emphasis supplied)”

14. This view is fortified with yet another excerpt from the East African Court of Appeal in the matter of Iga V. Makerere University(1972) E.A 62, where it was stated that;

“The limitation 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…….

The effect then is that if a suit is brought after the expiration of the period of limitation, and this is apparent from the plaint, and no grounds of exemption are shown in the plaint, the plaint must be rejected

15. For the reasons explained above, I find it reasonable at this stage to call upon the parties to address the court on the issue of limitation of time which touches on the jurisdiction of the court and whether there are any grounds of exemption to the claim with regard to the matter at hand before delving into the determination thereof.

16. In this respect, the Plaintiff is hereby directed to file and serve his submissions within 14 days from the date hereof. Equally, the Defendant shall file and serve his submission within 14 days after being served with the Plaintiff’s submissions.

Mention on 27th April, 2021 for highlighting.

17. Each party shall bear its own costs.

It is hereby so ordered.

DELIVERED, DATED AND SIGNED VIRTUALLY AT MOMBASA THIS 9TH DAY OF MARCH, 2021.

D. O. CHEPKWONY

JUDGE

9/3/2021