45 20 30 THE REPUBLIC OF UGANDA, IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (CORAM: CHEBORION, MUSOTA AND MADRAMA, JJA) CIVIL APPEAL NO 289 OF 2019 HENRY MUGANWA KAJURA} . «APPELLANT VERSUS 1. JOSEPH SSEMPEBWA} 2, PRINCE KASSIM KAKUNGULU} 3, PRINCES NAMUKAABYA NFAMBA} .... (Executors of the Estate of the late George William Mawanda) 4, PRINCE DAVID NAMUGALA MAWANDA} JUDGMENT OF CHRISTOPHER MADRAMA, JA RESPONDENTS, This appeal arises from the decision of the High Court of Uganda at Kampala partially allowing the plaintiffs action. The background to the suit is that the appellant filed a suit against Prince G. W Mawanda who subsequently died (hereinafter referred to as the deceased) and was substituted by the executors of the estate and his heir who is the fourth appellant to this appeal. The appellants claim against the defendant (the deceased) was for delivery of a piece of land similar to or equivalent to or equal to that comprised in Kyadondo Block 255 Plot to 227 in Kampala district. Alternatively, the plaintiff who is the appellant claimed payment of a sum of money being equivalent to the market value of the suit property as well as general damages for breach of contract. The brief facts were that the appellant claimed that he bought the property comprising Kyadondo block 255 plot 227 situated at Munyonyo, Kyadondo, Kampala district from the deceased for a consideration of 80,000/= Uganda shillings paid on 20" July, 1977 and which the deceased received on his account with10 15 30 Barclays bank (U) Ltd. On 20" April, 1986 the defendant executed a transfer deed of the said property to the appellant. The appellants suit was that the deceased having sold the property to the plaintiff and executed a transfer deed in his favour, in breach of the contract of sale when he subsequently sold and transferred the very same piece of property to another person. The appellant learnt about the transfer on 10" of July 1988. In paragraph 9 of the plaint, the plaintiff/appellant averred that by reason of the nature of the claim, the action is not time barred. The defendant denied the claims. The suit had been filed in 1993. The plaintiff subsequently amended the plaint and included the executors of the estate of the deceased who are now the first up to the third the respondents as well as the heir of the deceased Prince David Namugala Mawanda as the 4" respondent. Hon. Lady Justice Alexandra Nkonge Rugadya in a judgment dated 22" August, 2019 partially allowed the plaintiffs suit and awarded two acres of land or the equivalent in value thereof in the sum of Uganda shillings 500,000,000/- per acre in lieu thereof. She further awarded general damages of Uganda shillings 50,000,000/= with interest at 8% from the date of judgment till payment in full and costs of the suit. The plaintiff was aggrieved by the judgment appealed to this court on 4 grounds of appeal namely: 1. The learned trial judge erred in law and in fact when she failed to consider specific performance as was prayed. 2. The learned trial judge misdirected herself when she failed to find the administrators of the estate of the Prince George William Mawanda liable to the plaintiff as was prayed. 3. The learned trial judge erred when she held that the amount of compensation payable to the plaintiff cannot be based on the present market value of each acre and ignored the valuers evidence before awarding only Uganda shillings 1,000,000,000/=.5 10 15 20 30 35 4. The learned trial judge misdirected herself when she failed to award interest on the award of shillings 1,000,000,000/= for 2 acres. The appellant prays that the judgment and decision of the High Court in HCCS No 914 of 1993 be set aside in part. Secondly, that all the defendants be held liable to compensate the plaintiff jointly and severally. Thirdly, that the amount of compensation should be increased in tandem with the evidence adduced by the valuation surveyor. Fourthly, that the interest to be awarded and increased to 25% per annum on the amounts awarded. Lastly, the appellant prays for costs of the appeal and the High Court with interest from the date of judgment in the High Court. Similarly, the respondent was aggrieved by the judgment of the High Court and filed a notice of cross appeal on the following grounds: 1, The learned trial judge erred in law and fact when she held that: a. The plaint in HCCS 914 of 1993 disclosed a cause of action against the 5" respondent/defendant; b. The suit against the 5" respondent was not filed out of time or was not barred by time; c. The suit as a whole was not defeated by latches on the part of the appellant/plaintiff. 2. The learned trial judge erred in law when she granted reliefs based on un pleaded causes of action. 3. The learned trial judge erred in law and fact when she held without evidence that the 5" respondent took the suit land under the Will of the late George William Mawanda. 4. The learned trial judge erred in law in awarding damages/compensation that had not been pleaded or proved by the appellant. 5. In the alternative to ground 1 (c) above, the learned trial judge erred in law when she reinstated the suit for trial or hearing in 2014. The cross appellant prays that the cross appeal is allowed and the High Court suit dismissed.20 25 30 When the appeal came for hearing, the respondent was represented by learned counsel Mr Joseph Luswata of S & L Advocates and the appellants counsel was absent. With leave of court, the court was addressed in written submissions and judgment was reserved on notice. The appellant is represented by Mugabi & company advocates. The appellant's submissions The appellant's counsel submitted that the facts giving rise to the appeal are straightforward. Prince George William Mawanda was the owner of the land described as Kyadondo Block 255 Plot 227 located at Munyonyo village near Kampala next to Lake Victoria in July 1997 (1977) he decided to sell this land to the appellant at an agreed price of Uganda shillings 80,000/=. The appellant duly paid the sale price to the seller on 20" of April 1986 and the seller executed a transfer deed in favour of the appellant. On 10" of July 1988 the appellant was shocked to discover that Prince George William Mawanda had breached the sale agreement and fraudulently sold and transferred the same piece of land to another person. Thereafter the appellant sued the seller in the High Court for specific performance of the sale contract, general damages and special damages. Prince George William Mawanda died in the year 2000 and the respondents were substituted as the defendants. The 5" respondent is the heir of the deceased. Probate of the will of the deceased was granted to the respondents. The executors of the will transferred most of the property of the estate of the deceased to the 5" respondent Prince David Mawanda. Counsel for the appellant abandoned ground 1 of the appeal. He submitted that when the appellant filed the suit, specific performance was possible. But when the seller transferred the suit property to one Barbara Mulwana on 17" March, 1994, it became impossible. He submitted that this was deliberate fraud on the part of the deceased who had plenty of time to execute the contract between him and the appellant but did not do so. Ground 210 20 25 30 35 The appellant's counsel submitted that the learned trial judge misdirected herself when she failed to find that the respondents were also liable to pay the decreed sum to the appellant. He submitted that they are the legal representatives of the deceased. The successor of the deceased was joined because he was the heir and had received almost % of the estate of the deceased. Further the executors never renounced the office of executor in accordance with the section 196 of the Succession Act. Because the heir was the majority beneficiary, he was sued by virtue of section 286 of the Succession Act. He submitted that the law does not allow him to take all the property of the deceased when the creditors like the appellant were unpaid. He submitted that sections 322 and 323 of the Succession Act enable the heir to be liable to pay the appellant's debt. Further the appellants testified that at some time he was forced to go into exile due to the conditions obtaining in Uganda and only pursued the suit after his return. The court file was many times mysteriously missing. This the appellant's counsel further contended that there were mysterious dismissals of the suit and that is why the court deemed fit to reinstate the suit for justice to be done. No appeal was preferred against the reinstatement and there were no latches. Ground 3 of appeal The appellant's counsel submitted that the quantum of compensation in law is based on the values existing at the time of hearing. He submitted that there was a serious misdirection on the part of the learned trial judge. The valuation surveyor had testified that the value of each acre of land in the area where the suit property was situated was between 1,000,000,000/= Uganda shillings and 1,400,000,000/- Uganda shillings. The appellants counsel contends that the learned trial judge gave no valid reason to depart from the expert evidence. There is no evidence that the valuation surveyor included developments on the land. The conclusion of the suit after a long time cannot be pleaded by a fraudster to reduce the quantum of damages. He contended that this was a dirty fraud by a person in a high position and10 20 25 30 punitive damages ought to have been awarded against the deceased had he been alive. Further the learned trial judge gave no reason for not awarding interest on the value of the land. He prayed that interest be allowed at 25% per annum and the award of general damages should carry interest. Further the appellant's counsel submitted that the learned trial judge ought to have made the award against the administrators jointly with Prince David Mawanda who was the principal beneficiary. He submitted that the law requires all debts known and unknown to be paid from the estate. The appellant’s counsel further submitted that the appellant was not informed by the respondent that the late Prince George Mawanda had a debt. The debt was not advertised in the Uganda Gazette for constructive knowledge to be imputed by law. He contended that Prince David Mawanda who is the successor is legally and customary in possession of most of the estate of the deceased. That the appellant knew this is a fact and sued him knowing that tracing the estate property was to be done. He was a fit and proper person to be sued for being in actual possession of the estate property. Counsel further submitted that the appellant discovered the connection of Prince David Mawanda to the deceased in 2014 and that is when he decided to sue him. Further, that the 12 years’ limitation period does not cover fraud and lawsuits for specific performance. The cause of action arose when the appellant discovered the nexus between Prince David Mawanda and his father (the deceased) in 2014. Further the way of the deceased named Prince David Mawanda as an heir and trustee for some property. Further that Prince David Mawanda should not be left out when the debts of the estate remain unpaid. Though the deceased knew that there was a suit pending against him, he made no express mention of it in the will. Further the testator identified properties to deal with emergencies after his demise but the executors of the will transferred it to Prince David Mawanda even though the testator expressly prohibited giving the listed property to any of15 25 30 his children. Counsel prayed that the appeal is allowed with the orders prayed for in the memorandum of appeal. Reply of the respondent to the appellant's written submissions The respondent's counsel submitted that the respondent and particularly the fourth respondent Prince David Mawanda maintains that the suit against him is time barred. In elaboration he referred to the cross appellant's written submissions which are handled subsequently. The respondents counsel submitted that the respondents argue that the cause of action pleaded against them in paragraph 12 of the plaint, namely of distributing the estate without making provision for the appellant's claim is time barred. The respondent also refers to the written submissions in the cross appeal for this assertion. The respondents counsel further pointed out that the appellant tried to explain the limitation point away from the bar by submitting that the appellant was not informed by the respondent that Prince George William Mawanda had died. The respondent's counsel contends that this submission is not borne out by the evidence and was only made from the bar. Secondly the submission contradicts the appellant's pleadings and the evidence tendered by him in court. In the plaint, he had averred that the 6" defendant is the heir of the late Prince George Mawanda by his will. That he and the rest of the defendants are sued as legal representatives of the original defendant, the said Prince George William Mawanda who died sometime during 2000. This was also the appellants evidence in his written witness statement. Further PWS testified that he told the plaintiff about the death of the deceased around 2004. Further the respondents pleaded limitation in the written statement of defence in that they averred that the suit against him is time barred since the will of the late George William Mawanda was proved in court in the year 2000 and there was no denial of that averment by way of a reply. The appellant did not plead any facts but only averred that the suit was not time barred.10 15 20 25 In the premises, the respondent's counsel submitted that the submissions of the appellant's counsel on this point is dishonest. Further, the appellant was aware of the death of George William Mawanda and had pursued the fourth respondent by lodging a caveat on his land in Block 255 plot 882, based on which the fourth cross appellant testified that it was from the caveat that he learnt about the claim the appellant made, the subject matter of the suit. A letter from the lawyers of the appellant Messrs Matovu and Kimanje advocates dated 10" of March 2004 showed that the appellant was trying to recover land from the fourth cross respondent. The letter is written in 2004 and there was no other transaction between the two. The appellant's submission that the fourth respondent was given three quarters of the estate that he transferred land in trust or land at Mengo were unacceptable submissions from the bar. Counsel submitted that the appellant had all the time to confirm these facts or to plead them so that they are responded to. However, no evidence was led to show that the fourth respondent took three quarters of the estate. Further it may not be the No but the value of the property that matters. On the question of interest on damages The respondents counsel submitted that section 324 of the Succession Act is the basis of this claim. Interest in such claims is barred by section 328 of the Succession Act which provides that the refunding shall in all cases be without interest. Further claims of interest at commercial rates since 1977 is the most unreasonable claim given the appellants lacklustre manner with which he pursued his case. He never followed up this case and his advocate thinks that the files of cases which are dismissed by the court would still be in the registry instead of in the archives. The advocate could have obtained copies of the files from the former advocates or from the defendants filed a separate suit against the estate or the fourth cross appellant.20 25 30 The respondent's counsel submitted that the appellant's cause of action transformed to one of a creditor to the estate of the deceased and a prudent claimant would have been able to file a new suit. Cross appeal Counsel for the cross appellant submitted that in 1977 the appellant and the late George William Mawanda (referred to as the deceased) executed a contract for the purchase of land comprised in Block 255 Block 227 at Munyonyo. It is alleged in the plaint that in 1998, the deceased having sold the property to the appellant, fraudulently sold the same to Barbara Mulwana. In 1993, the suit from which the cross appeal arises was filed as High Court Civil Suit No 914 of 1993 against the deceased for an order to compel him to deliver to the appellant another piece of land similar to or equivalent to the suit property or the market value of the suit property. The suit was not prosecuted for 7 years until 2000 when George William Mawanda died. The executors of the estate of the late George William Mawanda were appointed by the court in 2001 pursuant to his will written in 1994. In 2003, the suit was dismissed for want of prosecution. Nothing happened in between the dismissal and 2010 when Civil Application No 315 of 2010 was filed by the appellant seeking to reinstate the suit. The same application was also dismissed in the same year. In 2014, Civil Application 315 of 2010 was reinstated, heard and allowed thereby reinstating Civil Suit No 914 of 1993 after 11 years from its first dismissal. Counsel submitted that in September 2014, the appellant filed an amended plaint in the suit replacing the deceased with the executors of the estate of the deceased and adding the fourth cross appellant as a party. 3 of the respondents passed away. Prince David Mawanda assumed the position No 4in the appeal and in the cross appeal is referred in the submissions as the fourth respondent or fourth cross appellant. Whether the suit to disclosed a cause of action against the fourth cross appellant/fourth respondent.45 20 25 30 35 Whether the suit against the fourth cross appellant/respondent was not time barred. On the 2 issues the respondent/cross appellant's counsel submitted on the question whether a cause of action was disclosed in the plaint that this is done by perusal of the plaint and Annexure thereto (see Uganda Telecom Ltd v ZTE Corporation, Civil Appeal No 3 of 2017 (Supreme Court) and Wycliffe Kiggundu v Attorney General; Civil Appeal No 27 of our 1992 (Supreme Court). The cross appellant's counsel submitted that the plaint is silent on the actions by the fourth cross appellant that entitles the appellant to complain against him. But there is no averment in the plaint itself or in any attachment to the plaint that the fourth cross appellant is said to have done that violated the appellant's rights. Such a plaint discloses no cause of action against the fourth cross appellant. Further the cross appellant's counsel submitted that the learned trial judge found that there were 2 causes of action disclosed against the fourth cross appellant in that she stated that the first cause of action arose in 1987 when the deceased went back on his word. Secondly, that the second cause of action arose against the son of the late George William Mawanda following the death of his father and the distribution of the estate and which he received the suit land as his bequest. In coming to this conclusion, the learned trial judge relied on the evidence to determine if a cause of action had been established against the fourth cross appellant which was in error as in such cases, only the plaint and its Annexure can be examined. Last but not least, on the first cause of action, there is no evidence of the involvement of the fourth cross appellant in the transaction in 1987. Counsel submitted that no relief can be granted based on a cause of action which is not pleaded (see East African Development Bank v Interfreight Forwarders Ltd in which leave is granted under the common carrier cause of action when what was pleaded was an action for negligence were reversed by the Supreme Court). Counsel submitted that the conclusion of10 15 25, the learned trial judge that an implied trust was created thereafter when the 6'" defendant received the suit land as part of his bequest when this was not pleaded is an error in law. Further, the cross appellant's counsel submitted that the finding that the suit land was part of the will of the deceased made in 1994 and that the fourth cross appellant received the suit land as his bequest, were findings of fact that erroneous as they contradict the plaint and the evidence of the appellant which shows that the suit land was sold in 1988 to another person one Barbara Mulwana. Further, the learned trial judge wrongly concluded that the appellant lodged a caveat on the suit land which the fourth cross appellant tried to vacate. However, the evidence shows that the caveat was lodged on Block 255 Plot 882, which land was purchased by the fourth cross appellant from Uganda Commercial Bank and is separate from the suit land. In conclusion, the plaint to the extent that it made no material allegations of omissions or commissions by the fourth cross appellant entitling the appellant to sue and succeed, disclosed no cause of action against the fourth cross appellant. It was an error to find a cause of action on the basis of evidence rather than restricting the findings on the basis of the plaint and Annexure and lastly the grant of remedies based on a cause of action which were not pleaded was erroneous in fact and in law. Issues (c), (d) and (e) Whether the suit against the fourth cross appellant/respondent is not time barred? Whether the suit is not defeated by latches; and Whether the learned trial judge erred to reinstate a suit eleven years after it was dismissed. The cross appellant's counsel submitted that the remedies sought against the fourth cross appellant were not separately stated and the prayers in the plaint were against the defendants jointly and severally in that they were 110 15 20 25 30 liable to deliver another piece of land of the same value or paid the equivalent market value of the suit land to the appellant. It can be concluded that the relief sought against the fourth cross appellant respondent is for specific performance or equitable compensation. Counsel further submitted that the judgment on the remedy of compensation granted the same to the appellant on the basis of sections 286, 323 and 324 of the Succession Act. Counsel submitted that any remedy for compensation as against the fourth cross appellant under sections 286, 323 and 324 of the Success Act, is time barred. The suit was instituted for the first time against the fourth cross appellant/respondent to the appeal in September 2014 following an amendment to the plaint to add him as a party. Under Order 1 rule 10 (5) of the Civil Procedure Rules, it is provided that: “For purposes of limitation, the proceeding against any person added or substituted as defendant shall be deemed to have begun only on the service of the summons on him or her.” The cross appellant's counsel submitted that in Seabridge and others vs. H Cox and Sons (Plant Hire Limited) (1968) QB 46, the question was whether the addition of India tires limited as defendant to an existing suit was time barred. Lord Denning stated that: “The old rule, Order 16 rule 11, say that when a party is added, the proceedings against such party should be "deemed to have begun only on the service of such writ" if that rule had been the rule in existence today, | feel that the words would have compelled the court to order that, against India tyres limited, the proceedings only begun on September 21, 1967, that is, more than three years after the date of the accident and they would be entitled to the benefit of the statute of limitation. The appellant's counsel submitted that in this case, the exact date when the summons to file a defense was served upon the fourth cross appellant, if any is not part of the record of appeal. However, it is obvious that the service of summons to file a defense and therefore the beginning of proceedings in the case against the fourth cross appellant occurred after10 20 30 35 the 3° day of September, 2014, the date the amended plaint was filed in court. The appellant's counsel submitted that the cause of action in the suit generally arose in 1988 when the suit property claimed by the appellant was sold to another person. As against the fourth cross appellant, any cause of action against him could only have arisen in the year 2000 upon the death of his father when the will stated that he received property of his father through bequest. Evidence demonstrates that the fourth cross appellant received property from the estate of the deceased in 2001. Secondly, the appellant learnt about the death of George William Mawanda in the year 2000. The cross appellant's counsel submitted that by the year 2003, the appellant was not only aware that George William Mawanda was deceased, but he was already asserting a claim on the basis of his 1977 transaction with the deceased against the fourth cross appellant by lodging a caveat on his land known as Block 255 plot 882 at Munyonyo. Further correspondence on the record shows that the caveat was lodged on the basis of Civil Suit 14 of 1993 and that the appellant had focused on recovering land from the fourth cross appellant. Counsel relied on Central Electricity Board v Halifax Corporation (1963) AC 785 for the scope of section 3 (1) (d) of the Limitation Act, cap 80 discussed by Lord Guest at page 806 of the judgment that: “the date when a cause of action accrues may be said to be the date on which the plaintiff would be able to issue a statement of claim capable of stating every existing fact which, if traversed it would be necessary for the plaintiff to prove in order to support his right to judgment... The appellants conceded that in the events which have happened, the sum of US$34,500 vested in them on April 1, 1948 by virtue of the provisions of the Electricity Acts. The cross appellant’s counsel submitted that the appellants cause of action against the fourth cross appellant in the case is for recovery of unpaid debts as a creditor from a legatee under section 324 of the Succession Act as found by the learned trial judge and therefore his cause of action based on an enactment is time barred. The same having been instituted against the legatee more than 6 years after the cause of action arose.10 20 25 30 Counsel submitted that the appellant knew about the death of the deceased in the year 2000 and immediately became a creditor of the estate of G.W Mawanda. In the year 2003, the appellant lodged a caveat on the land belonging to the fourth cross appellant claiming to be a creditor to the estate of G.W Mawanda. The appellants caveat was vacated with notice to him in 2005. Earlier, in March 2004, the appellants advocate had forwarded a copy of the certificate of title for land at Munyonyo to the respondents advocates which they said belonged to the fourth respondent. The cross appellant's counsel submitted that the evidence on record supported the appellants claim against the fourth respondent based on section 324 of the Succession Act which existed and were known by the appellant by the year 2000 upon the death of the deceased or by 2003 when he lodged a caveat on the fourth cross appellant's property. Counsel relied on section 3 (1) (d) of the Limitation Act which provides that actions to recover any sum recoverable by virtue of any enactment, and then a penalty of forfeiture or a sum by way of a penalty or for forfeiture shall not be brought after the expiration of 6 years from the date on which the cause of action arose. Counsel relied on Central Electricity Board v Halifax Corporation (supra) for the proposition that the cause of action is by virtue of an enactment under section 324 of the Succession Act which allows a creditor to call upon a legatee who received payment of his or her legacy to refund the debt. It is an action to recover any sum recoverable by virtue of an enactment and therefore should be dismissed for being time barred. Counsel submitted that the same authority suffices to defeat the appellant's new cause of action against the executors pleaded in paragraph 12 of the plaint of distributing the estate without making provision for the appellants claim which appeared for the first time against the executors in the year 2014, 13 years after the executors had done their work. Counsel submitted that the appellants claim in paragraph 12 of the plaint is an action for recovery of sums recoverable by virtue of any enactment. The respondent's counsel relies on Order 7 rule 6 of the Civil Procedure Rules for the proposition that where the suit is instituted after the expiration of the period 1420 25 35 prescribed by the law of limitation, the plaint shall show the grounds upon which exemption from the law is claimed. Last but not least a plaint shall be rejected under Order 7 rule 11 (D) where it appears from the statement in the plaint to be barred by any law (see Iga versus Makerere University (1972) EA 65.) Counsel submitted that the plaint against the fourth cross appellant filed in 2014 to recover sums recoverable by virtue of an enactment or for specific performance or equitable compensation being a cause of action that arose in 2000 upon the death of the original defendant ought to have been filed by 2006. Secondly the death of the original defendant is averred to have occurred in 2000, On the face of the plaint, the action in 2014 against the fourth cross appellant is time barred. For the plaint not to be rejected, the appellant had to plead the facts bringing him out of the apparent limitation in terms of Order 7 rule 6 of the CPR but did not. The above submission also applies to the cause of action pleaded against the executors in paragraph 12 of the plaint where it is stated that the executors distributed the estate of G.W Mawanda who died in the year 2000 without making provision for the claims in the suit. The cause of action arose in the year 2000 and was challenged for the first time by suit in 2014 and on the face of the pleadings alone, it is time barred. The appellant did not plead any exempting facts, from the law of limitation. The cross appellant's counsel submitted that the action for specific performance/equitable compensation is also time barred. Firstly, the action for specific performance cannot endure against the fourth cross appellant because he had no contract with the appellant. In any case an action against the fourth cross appellant if sustainable, is barred by limitation. Section 3 of the Limitation Act bars the enforcement of actions founded on contract 6 years after the cause of action arises. Counsel submitted that there cannot be an equitable claim for specific performance unless there has been a legal right in breach of contract first on the authority of Knox v Gye (1872) LR5 HL. The plaintiff's action in the plaint is in the alternative to the action 1510 2s 30 for specific performance. What is prayed for in the alternative of the equivalent of the current market value of the same piece of land is an alternative equitable claim for compensation. It cannot be brought or enforced 6 years after the cause of action arose and falls under the category of other equitable reliefs and section 3 (6) of the Limitation Act. Last but not least, counsel submitted on the doctrine of laches. | will consider the issue of latches and whether remedies that are not pleaded can be awarded after consideration of the issue of limitation which is a bar to the action. If the defence of limitation succeeds, then there is no need to consider the rest of the grounds of appeal/cross appeal. Resolution of the appeal/cross appeal | have carefully considered the appellants appeal as well as the cross appeal. As a first appellate court, our duty is to reappraise the evidence on record and reconsider the case afresh on the basis of that (see rule 30 of the Rules of this court). This duty of the Court is spelt out in Peters v Sunday Post Limited [1958] 1 EA 424 by the then East African Court of Appeal at page 429 which held that the duty of a first appellate is: to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand, But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion... The cross appeal of the respondents raises two points of law. Firstly, whether the plaintiff's plaint in the High Court discloses a cause of action against the executors of the estate of G. W Mawanda (deceased) who passed away in the year 2000. Secondly, whether the suit is barred by limitation. The cross appellant's counsel further invited the court to peruse the plaint to arrive at its findings. The two issues therefore have the potential to dispose of the appeal and the cross appeal without the need to consider the grounds of the appeal or other grounds of the cross appeal and will be handled first. 1615 25 30 On whether the plaint discloses a causes of action, the law and procedure is straight forward. An objection can be made to a plaint pursuant to Order 7 rule 11 (a) of the Civil Procedure Rules on the ground that a plaint shall be rejected for “(a) disclosing no cause of action”. Secondly, an objection can be raised under Order 7 rules 11 (d) on the ground that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law’. This may include the objection that the suit is time barred. Where a plaint is barred by law, no cause of action is disclosed. In Auto Garage versus Motokov (1971) EA 514 the East African Court of Appeal held that the provision that a plaint be rejected for disclosing no cause of action is mandatory. Secondly, a plaint which discloses no cause of action is a nullity and cannot be amended. An amendment will not be allowed where the cause of action is barred by the law of limitation. In Opio v Attorney General (1990 - 1991) 1 KALR 66 it was held that a suit barred by statute must be rejected. This follows the East Africa Court of Appeal decision in Iga v Makerere University [1972] EA 65 where it was held that a plaint barred by the statute of limitation is barred by law and must be rejected. This is in line with the express provisions of Order 7 rule 11 (d) of the Civil Procedure Rules. In Attorney General v Tinyefunza Constitutional Appeal No. 1 of 1997 Wambuzi, C. J (as he then was) held that the facts disclosing a cause of action shall be alleged in the plaint and any annexure forming part of the plaint. See also Attorney General v Oluoch 1972 EA 392 and Sullivan V Ali Mohamed Osman (1959) EA 239 that the facts constituting the relevant cause of action shall be disclosed in the plaint. In Jeraj Shariff v Fancy Stores [1960] 1 EA 374, the East African Court of Appeal per Windham JA held that: The question whether a plaint disclose a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part