The law has a cruel side. It is commonly found in lawyers, but is also often in the statute books. In its cruel nature, the law has no regard for our ordinary sense of right and wrong. A famous jurist once remarked: “I know not what’s right, but I know what’s legal”. The Germans captured it in the cold and insensitive phrase, das gesetz is das gesetz”, which in English is “the law is the law”.
One such law is that on the limitation of actions, which places a time limit on the period within which one may take legal action against a defendant. Between ordinary people, these limits are governed by the Limitation of Actions Act. Under the provisions of this Act, no suit may be filed for a breach of contract after six years from the date of the alleged breach. A claim for payment, for example, cannot be made after six years from the date when the payment became due. In respect of land, no claim may be made after 12 years from the date the right to sue arose. If a trespasser resides on a parcel of land for this period, he or she cannot be evicted thereafter.
Pressure over the pending bills
The third type of lawsuit governed by the Act are torts, which are claims of injury to a person or property. A common example is accidental injuries. The Act puts a time limit of three years. The Defamation Act, however, lowers the limit for injuries to reputations. Libel or slander suits may not be brought after 12 months from the date of injury.
Another Act of Parliament, however, makes special provisions for the Government and councils. The Public Authorities Limitations Act provides that in cases founded on tort, no suit may be brought against the Government or a council after 12 months from the date the injury was caused.
And in case of a contract, no suit may be brought against the Government or a council after three years from the date the right to sue arose. Thus as the Government and councils grapple with the stolen public property and unpaid bills, the law on limitations is set to cause grievous injury to them and those with claims against them.
But there are those who have claims against the Government, mainly suppliers and contractors. The limitation law says that they cannot sue the Government after three years from the date of payment became due. As of today, therefore, any payment due from the Government or a council as at May 2001 is now barred by law; it cannot form the basis of any legal proceedings against the Government. Despite the pressure of what is now known as pending bills, the Government has not asserted its legal rights under the law of limitations; it continues to settle the bills although they are barred by law.
Small and tight opening for limitations
Conversely, the Government and the councils stand to suffer from the law of limitations. Billions of public funds in unpaid loans and stolen funds are irrecoverable through civil action. The people against whom such claims can be made do have a right to assert the law on limitation against the Government and its institutions.
A lot of the monies we have heard mentioned as due to such institutions as Central, Trade, Pan African and Trust Banks and Deposit Protection Fund are irrecoverable, but six years have lapsed since they became due.
But the law has created a small and tight opening for the extension of the limitation period. In the case of torts, an extension may be granted by the court where a person was unaware of the injury or fraud. An extension will also be granted where a person was below 18 years when the cause of action arose, or was of unsound mind. The instance where the Government may get an extension of time is in corruption cases. The time to file a suit arises only when the Government discovers the fraud, but this suit must be filed within six years of the discovery of the fraud. The only person, if liable, who has nothing to smile about is former President Moi. This is because for 24 years, he enjoyed constitutional immunity from civil action, but time began running out for him on December 29, 2002.