KENYA COMMERCIAL BANK LIMITED V. MANASEH ESIPEYA

RULING OF THE COURT

Tony Esipeya, the respondent in this appeal, (hereinafter called "the plaintiff') sued Kenya Commercial Bank Ltd, the appellant (hereinafter called "the defendant"), in the superior court claiming damages for alleged wrongful exercise of statutory power of sale by the defendant. The defendant sold a piece of land which the plaintiff had given as security for a loan, on 28th October, 1981. The suit was filed on 9th January, 1992. In a defence filed on 11th March, 1992 the defendant denied the plaintiff's claim and pleaded in paragraph 12 that -

"(12) Further to the above the defendant avers that all matters complained of occurred more than 6 years ago and the claim is therefore statute barred."

The defendant did not make a formal application to strike out the plaint but instead raised a preliminary objection at

the trial that the plaintiff's claim was time-barred. The learned Judge dismissed the preliminary objection and it is against that decision that the defendant …