Sammy Karanja & Escalio Manuel D’silva t/a Sam & Sema Market Centre v Provident Rock Investment Ltd & Mary Waigwe Muthoni [2021] KEELC 2624 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

MILIMANI LAW COURTS

ELC NO 379 OF 2019

SAMMY KARANJA & ESCALIO MANUEL

D’SILVA T/A SAM & SEMA MARKET CENTRE..................................PLAINTIFFS

=VERSUS=

PROVIDENT ROCK INVESTMENT LTD......................................1ST DEFENDANT

MARY WAIGWE MUTHONI...........................................................2ND DEFENDANT

RULING

1. The Plaintiffs were tenants in premises which were erected on LR No.209/1413/40. The Plaintiffs were initially trading under the name of Mitra Club before they changed to Sam and Sema Market Centre. On 5th May 2004, the 1st Defendant purchased the premises from its previous owners. As at the time of purchase of the premises by the 1st Defendant, the Plaintiffs had sub-tenants on the premises.

2. The 1st Defendant started collecting rent from the sub-tenants in April 2005. This action prompted the Plaintiffs to move to the Business Premises Rent Tribunal where they contended that they were the head tenants and that they are the ones who ought to collect rent. The Business Premises Rent Tribunal finally found that it had no jurisdiction in the matter.

3. The Plaintiffs then filed this suit in 2019 claiming rent arrears from 1st Defendant with effect from 1st May 2005 to 30th August 2013 and from the 2nd Defendant from 1st September 2013 to December 2014. The 2nd Defendant purchased the premises from 1st Defendant in 2013. The Plaintiffs also claimed costs of renovations and refurbishments to the tune of Kshs.2,041,500 from both the 1st and 2nd Defendants as well as damages for wrongful eviction .

4. Before this suit was set down for hearing, the 1st Defendant raised a preliminary objection on the ground that the Plaintiffs’ suit is statute barred. Parties were directed to file written submissions in respect of the preliminary objection. The 1st Defendant filed its submissions dated 7th January 2021. The second Defendant filed her submissions dated 12th February 2021. The Plaintiffs filed their submissions dated 15th March 2021.

5. I have gone through the submissions by the parties herein. The only issue for determination is whether the Plaintiffs’ suit is statute barred. The Plaintiffs are claiming rent arrears with effect from 1st may 2005. The Plaintiffs claim that the 1st Defendant had been collecting rent unlawfully from 1st may 2005 until it sold the premises to the 2nd Defendant who also illegally collected rent which was due to them. This being the Plaintiffs’ contention, then they are claiming mesne profits.

6. Section 2 of the Civil Procedure Act defines mesne profits as follows: -

“In relation to property, means those profits which the person in wrongful possession of such property actually receive or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession.”

7. Section 8 of the Limitation of Actions Act provides as follows:

“An action may not be brought, and distress may not be made, to recover arrears of rent, or damages in respect thereof, after the end of six years from the date on which the arrears became due”.

8. As I have said hereinabove, rent arrears are like mesne profits. In the case of Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah [2016] eKLR Mesne profits were defined as follows:-

“The term ‘mesne profits’ relates to the damages or compensation recoverable from a person who has been in wrongful possession of immovable property. The Mesne profits are nothing but a compensation that a person in the unlawful possession of others property has to pay for such wrongful occupation to the owner of the property. It is settled principle of law that wrongful possession is the very essence of a claim for mesne profits and the very foundation of the unlawful possessor’s liability therefore. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits”.

9. The question which then requires to be answered is when the cause of action by the Plaintiffs accrued. The Plaintiffs contend that they were evicted from the premises in April 2005. This is the time when the cause of action accrued to them. The Plaintiffs ought to have filed their suit within six years from April 2005. The six-year period ended in 2011. This suit was filed in 2019, a period of fourteen (14) years after the cause of action accrued to the Plaintiffs.

10. The Plaintiffs in their submissions seem to argue that they were prevented from filing a suit as there were other cases which were going on involving the parties. The filing of suits could not extend or stop time from running. In the case of Donald Osewe Oluoch v Kenya Airways Limited [2017] eKLR,the Court of Appeal had this to say regarding filing of other suits:-

“There is no provision in the Limitation of Actions Act or in any other statute in Kenya providing that the time when a “plaintiff has been prosecuting…another civil proceeding [in a court] against the defendant…founded upon the same cause of action” shall be excluded in computing the period of limitation”.

11. It is therefore clear that the Plaintiffs’ suit is time barred. The Plaintiffs case cannot be salvaged by the holding in the English case of Huyton and Rubygas Company Vs Liver Pool Corporation (1926) CA 146 (Banke L.J at page 152). The 1st or 2nd Defendant did not owe the Plaintiffs any duty which would have brought the case under the purview of continuous breach. I therefore uphold the preliminary objection and find that the Plaintiffs’ suit is statute barred. The suit is struck out with costs to the Defendants.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 14TH  DAY OF JUNE 2021.

E.O. OBAGA

JUDGE

In the Virtual presence of:-

Mr Aswani for Plaintiffs

Mr Mbaabu for 1st Defendant

Court Assistant: Okumu

E. O. OBAGA

JUDGE