Kenyan firm loses bid to recover property from NSSF

Alcon International Limited to pay the costs of the suit to NSSF. Justice Musa Ssekaana in his decision dated October 31st 2024 dismissed the suit saying that there was no cause of action and that the claim was time-barred under the Limitation Act

Kampala, Uganda | THE INDEPENDENT | The High Court in Kampala has dismissed a suit filed by a Kenyan company Alcon International against the National Social Security Fund (NSSF) seeking the return of plant, machinery, equipment, and building materials allegedly detained since May 1998.

Justice Musa Ssekaana in his decision dated October 31st 2024 dismissed the suit saying that there was no cause of action and that the claim was time-barred under the Limitation Act, having risen twenty-six years ago.

The Judge further agreed with NSSF that a similar matter was already determined in High Court Civil Suit Number1255 of 1998 and Arbitration Cause Number 4 of 2001. The court agreed, stating that Alcon International had not established a new cause of action.

In 2020, Alcon International Limited sued NSSF saying that it constructed 19 floors of the Workers’ House building at Plot 1, Pilkington Road, Kampala, between July 21, 1994, and May 19, 1998.

However, on May 15, 1998, NSSF allegedly closed Alcon out of the construction site, denying access to remove its plant, machinery, equipment, and building materials used to erect the building. Furthermore, Alcon claims that NSSF commandeered and took away its property for its use.

Despite repeated requests, Alcon told the High Court that NSSF refused to return its property, prompting the company to seek legal action. As a result, Alcon sought compensation for commercial loss, aggravated, special, and general damages, interest, and costs of the suit.

Alcon also asked the Court to order NSSF to return its detained plant, machinery, equipment, and building materials or recover their value.

NSSF denied all the allegations against them and raised preliminary objections that the suit is bad in law on grounds that the said complaint was already determined some time back, fraudulent misrepresentation and non-disclosure of the cause of action.

NSSF told Justice Ssekaana that the matter between the parties was heard and determined by Arbitration and the award of United States Dollars 2,781,528.52 was confirmed by the High Court and Court of Appeal.

NSSF further told the Judge that Civil Appeal Number 15 of 2009 between the parties was heard by the Supreme Court which set it aside and held that Alcon International had no cause of action and ordered a fresh hearing of the case. The case was retried as Civil Case Number 1255 of 1998 and was struck out for disclosing no cause of action.

According to available court records, the retrial included matters which are claimed under this very suit.

The Court also heard that NSSF entered into a contract for the construction of the Workers’ House with Alcon International Ltd, a company incorporated in Kenya and was under the impression that it was dealing with such. However, NSSF said it only became aware that it was dealing with a different company upon a 2007 decision of the Court of Appeal where it established that Alcon International Limited had fraudulently assigned the building contract to the plaintiff without its knowledge and consent which was illegal and fraudulent.

“The defendant/NSSF further averred that upon the termination of the contract with Alcon International Limited, all post-termination issues were governed by the contract and that it refused to attend to the taking of the inventory. It therefore denied all allegations of deprivation of the plaintiff of its plant, equipment, machinery and damages suffered as a result”, reads the document.

In his decision, Justice Ssekaana said that Alcon’s claim that a wrongful act or an infringement of a right leading to legal liability continues no matter when one complains was dismissed on the basis that allowing it would defeat the purpose and essence of the provisions of the Limitation Act.

“The plaintiff ought to have filed a suit for recovery if at all the plant and machinery and other materials belonged to them as they contend. There is no justification for the prolonged delay to seek recovery after over 22 years, and this being a tort its cause of action ought to have been filed within 6 years as per section 3 of the Limitation Act”, held Ssekaana.

He ordered Alcon International Limited to pay the costs of the suit to NSSF.

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