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Court of AppealDismissedNot stated in the judgment

Micah Sibo Bulali v Miriam Josephine Charles [1988] KECA 5 (KLR)

Court of Appeal of Kenya
2 December 1988
615 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a land claim based on a 1961 promise was filed too late, because the plaintiff's own pleadings showed the claim was time barred.

What this practically means

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Executive summary

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The appellant sued the respondent by plaint filed in 1986, claiming one acre out of land registered as title No W/Bunyore/Itumbu/848 on the basis that in 1961, during demarcation, his one acre had been added to the respondent's land, for which the respondent had promised to compensate him with another acre but had failed to do so. In her defence the respondent denied the claim and pleaded that any such 1961 transaction was time barred. On March 31, 1987, at the hearing, counsel for the respondent took limitation as a preliminary point; the learned judge upheld it on the pleadings and dismissed the suit. The appellant, newly represented, was granted leave to file an amended petition of appeal raising four grounds, in substance that the judge erred in fixing 1961 as the date when the cause of action arose without evidence, in finding the plaint pleaded a 1961 cause of action, and in holding the suit time barred. Counsel properly conceded that the claim sounded in contract and concerned land. He asserted a later acknowledgement by the respondent, but the Court of Appeal held that no such averment appeared in the plaint before the judge. The court held it was not the judge's role to speculate or fill gaps in the pleadings, concurred that the cause of action, if any, was clearly time barred, found no merit in the appeal, and dismissed it with costs. The High Court decision was affirmed in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in holding that the cause of action arose in 1961 when there was no evidence or without calling for evidence to that effect
  2. 2.Whether the learned judge erred in holding that the plaint stated that the cause of action arose in 1961
  3. 3.Whether the suit was time barred

Key legal issues

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01

Whether a claim based on a 1961 promise to compensate with land, filed in 1986, was time barred

Holding

Yes - the cause of action sounded in contract and arose in 1961, so it was statute-barred; no later acknowledgement was pleaded

Reasoning

Counsel for the appellant conceded the cause of action sounded in contract. The plaint itself pleaded that the promise was made in 1961 during demarcation. Although counsel asserted there was a later acknowledgement by the respondent, no such averment appeared in the plaint before the judge when limitation was raised, so the court could not act on it. The judge rightly upheld the preliminary objection on the pleadings without calling for evidence.

p. 2
02

Whether a judge may decide limitation without evidence on the pleadings alone

Holding

Yes - where the pleading itself discloses when the cause of action arose, the judge may uphold a limitation objection without evidence

Reasoning

The plaint expressly averred that the promise was made in 1961. The contention that the judge erred in holding the cause of action arose in 1961 'without evidence' failed because the date was pleaded by the plaintiff himself. It was not the judge's role to speculate or fill gaps in the pleadings, nor to entertain unpleaded claims of later acknowledgement.

p. 2

Legal principles established

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  • Where limitation is raised on the pleadings, a court may determine the issue without evidence and is not obliged to speculate or fill gaps in the pleadings for a plaintiff

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya
null
Jurisdiction invoked
First appeal to the Court of Appeal (statutory appeal from the High Court; specific provision not stated in the judgment)

Relief refused

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The appellant's claim to one acre of land out of title No W/Bunyore/Itumbu/848

The cause of action, if any, was time barred on the pleadings; no averment of a later acknowledgement of the promise was made in the plaint

p. 2

Costs

Appeal dismissed with costs (the appellant to pay the respondent's costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having considered the pleadings ourselves, we concur with the learned judge in his finding that the cause of action, if any, was clearly time barred.
p. 2Limitation - cause of action in contract time barred
It was clearly not for the learned judge to speculate or fill in the gaps in the pleadings for the plaintiff.
p. 2Pleadings - court cannot fill gaps for a plaintiff
That may well be so but no such averment was made in the plaint which was before the judge when the issue of limitation was raised.
p. 2Unpleaded acknowledgement cannot be relied on on appeal
In the result we find no merit in this appeal and accordingly order it to be dismissed with costs.
p. 2Final orders - appeal dismissed with costs

Issues in the judgment

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minor

The judgment does not state the case number of the appeal, the High Court case number, the name of the trial judge, or the date of the decision appealed from

minor

The judgment refers to the land title inconsistently as 'W Nbunyore/Itumbu/848', 'W Nunyore/ Iteumbu/848' and 'W Bunyore/Itumbu/ 849'

minor

The judgment does not name the statute governing limitation, stating only the pleaded defence of statutory limitation

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Micah Sibo Bulali v Miriam Josephine Charles [1988] KECA 5 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/5/eng@1988-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.