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Introduction
1. This is an appeal against the ruling of the subordinate court delivered on 12th October, 2022, in which the Learned Magistrate dismissed the Appellant’s Preliminary Objection dated 24th March, 2022. The Objection asserted that the Respondents’ suit was time-barred under Sections 4(2) of the Limitation of Actions Act, 3(1) of the Public Authorities Limitation Act, 20 of the Defamation Act, and 90 of the Employment Act.
2. The appeal was canvassed through written submissions, and the record includes detailed arguments from both sides. I have considered those submissions, the authorities relied upon, the record from the court below, and the applicable law.
3. The ruling that follows is a determination of three issues: the limitation question under the Limitation of Actions Act and Defamation Act; the question of limitation under the Public Authorities Limitation Act; and the issue of costs. The parties agreed that the ground relating to termination of employment does not fall within this court’s jurisdiction, and I address no merits of that issue.
Background
4. The Respondents filed Milimani CMCC No. 737 of 2022 seeking damages for malicious prosecution following their acquittal on 2nd May, 2019, in Criminal Case No. 1400 of 2015. They allege that the Appellant instigated the criminal proceedings without reasonable cause, that the prosecution was malicious, and that the proceedings ruined the 1st Respondent’s career and reputation. They also pleaded consequential financial loss flowing from the alleged malicious prosecution.
5. The Appellant filed a Preliminary Objection contending that the suit was barred by limitation, that the suit amounted to a claim in defamation disguised as malicious prosecution, that the claim against the DPP was out of time under the Public Authorities Limitation Act, and that the prayers referring to loss of employment contravened Section 90 of the Employment Act.
6. The trial court dismissed the objection, holding that the suit, properly understood, was for malicious prosecution and had been filed within three years of acquittal as required by Section 4(2) of the Limitation of Actions Act.
7. The Appellant now challenges that finding.
The Parties’ Submissions
Appellant’s Submissions
8. The Appellant submits that the Respondents’ plaint contains allegations equivalent to defamation, referring to publication of allegations within the workplace, destroyed reputation, and loss of professional standing. They argue that these matters fall squarely within Section 20 of the Defamation Act, which imposes a strict 12-month limitation period. They rely on Harrison Kariuki Muru v National Bank of Kenya Ltd [2019] eKLR, where a suit grounded on defamatory publication was struck out for having been filed outside the twelve-month period.
9. They further contend that the claim against the DPP is incompetent under Section 3(1) of the Public Authorities Limitation Act because no tort claim may be brought against a public authority more than twelve months after the cause of action accrues. The cause accrued on 2nd May, 2019, but the suit was filed on 15th February, 2022. Counsel relies on Jacob Juma & Another v Commissioner of Police & Another [2013] eKLR, where the High Court held that claims for malicious prosecution against the State must comply with the strict twelve-month window.
10. Finally, they submit that the Trial Magistrate misdirected himself in law and failed to appreciate that limitation is a jurisdictional question, and therefore the Preliminary Objection ought to have been upheld.
Respondents’ Submissions
11. The Respondents counter that their suit is one for malicious prosecution and not for defamation. They emphasize that the plaint narrates the institution of criminal charges, the alleged absence of reasonable cause, their acquittal, and particulars of malice, all of which are classic ingredients of the tort of malicious prosecution. The references to reputational injury, professional loss, and publicized allegations are pleaded as consequences of malicious prosecution, not as an independent tort of defamation.
12. They argue that, under Section 4(2) of the Limitation of Actions Act, actions founded on tort (other than defamation) must be filed within three years of accrual. Since the cause accrues only upon acquittal, consistent with Jacob Juma and the Court of Appeal in Mbowa v East Mengo Administration [1972] EA 352, their filing in February 2022 was within time.
13. On the claim against the DPP, the Respondents submit that the 3rd Respondent filed a Memorandum of Appearance and Statement of Defence without raising limitation, thereby submitting to the jurisdiction of the Court. They rely on Kanti & Co. Ltd v South British Insurance Co. Ltd [1981] KLR, and further on the Court of Appeal decisions in Stephen Onyango Achola v Edward Hongo Sule [2004] eKLR and Abdullahi Ibrahim Ahmed v Lem Lem Teklue Muzolo [2013] eKLR, which hold that limitation must be specifically pleaded and that failure to do so disentitles a litigant from later invoking it.
14. They therefore contend that the Preliminary Objection lacked merit, was not founded on a pure point of law as required by Mukisa Biscuit, and was properly dismissed.
Analysis and Determination
Whether the Suit Was Time-Barred Under the Limitation of Actions Act and the Defamation Act
15. The first task is to determine the true character of the Respondents’ claim. A court must look beyond labels and interrogate the substance of the pleadings.
16. The plaint repeatedly sets out: the institution of criminal proceedings, the alleged lack of reasonable cause, particulars of malice, the acquittal, and the consequential injuries to the Respondents. These are the essential elements of the tort of malicious prosecution, as articulated in Mbowa v East Mengo District Administration and consistently applied in Kenya, including in Gitau v Attorney General [1990] KLR 13 and Kagane v Attorney General [1969] EA 643.
17. The references to reputational damage are pleaded as damage resulting from the prosecution, not as operative facts constituting defamation. The Respondents did not seek any relief for libel or slander, nor did they plead defamatory words verbatim as required by Order 2, rule 7.
18. The Appellant’s characterization of the suit as a concealed claim in defamation is therefore not borne out from the pleadings.
19. In a malicious prosecution claim, time accrues upon favourable termination of proceedings. Mbowa makes clear that the cause of action is not complete until acquittal. This position has been affirmed in Jacob Juma, where the High Court expressly held that time begins to run only after acquittal.
20. The Respondents were acquitted on 2nd May, 2019. The suit was filed on 15th February, 2022, well within the three-year period allowed by Section 4(2) of the Limitation of Actions Act for torts.
21. I therefore find that the subordinate court correctly held that the claim was not time-barred.
Whether the Claim against the DPP Was Time-Barred Under the Public Authorities Limitation Act
22. Section 3(1) of the Public Authorities Limitation Act imposes a strict twelve-month limitation period for tort claims against government entities, including the DPP. If the Respondents had filed their malicious prosecution claim within twelve months of acquittal, the claim would have been timely. They did not.
23. Ordinarily, this would bar the suit against the DPP. However, limitation is a defence that must be raised at the earliest opportunity and must be pleaded. The DPP filed a Memorandum of Appearance and a Statement of Defence, fully engaging the merits and did not plead limitation.
24. The Court of Appeal in Stephen Onyango Achola v Edward Hongo Sule and in Abdullahi Ibrahim Ahmed v Lem Lem Teklue Muzolo held unequivocally that a party who fails to plead limitation cannot raise it later as a Preliminary Objection or during trial unless the defence is amended. The defence may be waived, and where a party elects to submit to jurisdiction, the court is entitled to proceed.
25. The DPP did not raise limitation, did not amend its defence, and submitted to the court’s jurisdiction. The right to rely on limitation was therefore waived.
26. The trial court did not make a specific finding on this objection but was not wrong in declining to strike out the suit. The claim against the DPP remains properly before the Court.
Whether the Preliminary Objection Was Properly Dismissed
27. A valid Preliminary Objection must raise a pure point of law, one that is argued on the assumption that all facts pleaded by the other side are correct. It must not require ascertainment of facts. This principle from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 has been reiterated in numerous Kenyan decisions, including IEBC v Jane Cheperenger [2015] eKLR, where the Supreme Court stressed that contested facts render a Preliminary Objection unsuitable.
28. The Appellant’s objection required the trial court to determine whether the claim was properly one of malicious prosecution or defamation, an inquiry that forced the Court to interpret pleadings, examine factual particulars, and consider the nature of damages pleaded. This is not the type of inquiry contemplated by Mukisa Biscuit. The magistrate therefore arrived at the correct conclusion in declining to uphold the Preliminary Objection.
Costs
29. Costs follow the event. There is no misconduct on the part of the Respondents that would justify a departure from this rule. The Preliminary Objection lacked merit, and the appeal similarly fails. Costs shall therefore be awarded to the 1st and 2nd Respondents.
Disposition
30. Based on the reasons set out above I find and hold that the appeal is without merit. The same is hereby dismissed with costs to the 1st and 2nd Respondents.
Dated and delivered virtually via Microsoft Teams this 27 day of November, 2025
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Introduction
1. This is an appeal against the ruling of the subordinate court delivered on 12th October, 2022, in which the Learned Magistrate dismissed the Appellant’s Preliminary Objection dated 24th March, 2022. The Objection asserted that the Respondents’ suit was time-barred under Sections 4(2) of the Limitation of Actions Act, 3(1) of the Public Authorities Limitation Act, 20 of the Defamation Act, and 90 of the Employment Act.
2. The appeal was canvassed through written submissions, and the record includes detailed arguments from both sides. I have considered those submissions, the authorities relied upon, the record from the court below, and the applicable law.
3. The ruling that follows is a determination of three issues: the limitation question under the Limitation of Actions Act and Defamation Act; the question of limitation under the Public Authorities Limitation Act; and the issue of costs. The parties agreed that the ground relating to termination of employment does not fall within this court’s jurisdiction, and I address no merits of that issue.
Background
4. The Respondents filed Milimani CMCC No. 737 of 2022 seeking damages for malicious prosecution following their acquittal on 2nd May, 2019, in Criminal Case No. 1400 of 2015. They allege that the Appellant instigated the criminal proceedings without reasonable cause, that the prosecution was malicious, and that the proceedings ruined the 1st Respondent’s career and reputation. They also pleaded consequential financial loss flowing from the alleged malicious prosecution.
5. The Appellant filed a Preliminary Objection contending that the suit was barred by limitation, that the suit amounted to a claim in defamation disguised as malicious prosecution, that the claim against the DPP was out of time under the Public Authorities Limitation Act, and that the prayers referring to loss of employment contravened Section 90 of the Employment Act.
6. The trial court dismissed the objection, holding that the suit, properly understood, was for malicious prosecution and had been filed within three years of acquittal as required by Section 4(2) of the Limitation of Actions Act.
7. The Appellant now challenges that finding.
The Parties’ Submissions
Appellant’s Submissions
8. The Appellant submits that the Respondents’ plaint contains allegations equivalent to defamation, referring to publication of allegations within the workplace, destroyed reputation, and loss of professional standing. They argue that these matters fall squarely within Section 20 of the Defamation Act, which imposes a strict 12-month limitation period. They rely on Harrison Kariuki Muru v National Bank of Kenya Ltd [2019] eKLR, where a suit grounded on defamatory publication was struck out for having been filed outside the twelve-month period.
9. They further contend that the claim against the DPP is incompetent under Section 3(1) of the Public Authorities Limitation Act because no tort claim may be brought against a public authority more than twelve months after the cause of action accrues. The cause accrued on 2nd May, 2019, but the suit was filed on 15th February, 2022. Counsel relies on Jacob Juma & Another v Commissioner of Police & Another [2013] eKLR, where the High Court held that claims for malicious prosecution against the State must comply with the strict twelve-month window.
10. Finally, they submit that the Trial Magistrate misdirected himself in law and failed to appreciate that limitation is a jurisdictional question, and therefore the Preliminary Objection ought to have been upheld.
Respondents’ Submissions
11. The Respondents counter that their suit is one for malicious prosecution and not for defamation. They emphasize that the plaint narrates the institution of criminal charges, the alleged absence of reasonable cause, their acquittal, and particulars of malice, all of which are classic ingredients of the tort of malicious prosecution. The references to reputational injury, professional loss, and publicized allegations are pleaded as consequences of malicious prosecution, not as an independent tort of defamation.
12. They argue that, under Section 4(2) of the Limitation of Actions Act, actions founded on tort (other than defamation) must be filed within three years of accrual. Since the cause accrues only upon acquittal, consistent with Jacob Juma and the Court of Appeal in Mbowa v East Mengo Administration [1972] EA 352, their filing in February 2022 was within time.
13. On the claim against the DPP, the Respondents submit that the 3rd Respondent filed a Memorandum of Appearance and Statement of Defence without raising limitation, thereby submitting to the jurisdiction of the Court. They rely on Kanti & Co. Ltd v South British Insurance Co. Ltd [1981] KLR, and further on the Court of Appeal decisions in Stephen Onyango Achola v Edward Hongo Sule [2004] eKLR and Abdullahi Ibrahim Ahmed v Lem Lem Teklue Muzolo [2013] eKLR, which hold that limitation must be specifically pleaded and that failure to do so disentitles a litigant from later invoking it.
14. They therefore contend that the Preliminary Objection lacked merit, was not founded on a pure point of law as required by Mukisa Biscuit, and was properly dismissed.
Analysis and Determination
Whether the Suit Was Time-Barred Under the Limitation of Actions Act and the Defamation Act
15. The first task is to determine the true character of the Respondents’ claim. A court must look beyond labels and interrogate the substance of the pleadings.
16. The plaint repeatedly sets out: the institution of criminal proceedings, the alleged lack of reasonable cause, particulars of malice, the acquittal, and the consequential injuries to the Respondents. These are the essential elements of the tort of malicious prosecution, as articulated in Mbowa v East Mengo District Administration and consistently applied in Kenya, including in Gitau v Attorney General [1990] KLR 13 and Kagane v Attorney General [1969] EA 643.
17. The references to reputational damage are pleaded as damage resulting from the prosecution, not as operative facts constituting defamation. The Respondents did not seek any relief for libel or slander, nor did they plead defamatory words verbatim as required by Order 2, rule 7.
18. The Appellant’s characterization of the suit as a concealed claim in defamation is therefore not borne out from the pleadings.
19. In a malicious prosecution claim, time accrues upon favourable termination of proceedings. Mbowa makes clear that the cause of action is not complete until acquittal. This position has been affirmed in Jacob Juma, where the High Court expressly held that time begins to run only after acquittal.
20. The Respondents were acquitted on 2nd May, 2019. The suit was filed on 15th February, 2022, well within the three-year period allowed by Section 4(2) of the Limitation of Actions Act for torts.
21. I therefore find that the subordinate court correctly held that the claim was not time-barred.
Whether the Claim against the DPP Was Time-Barred Under the Public Authorities Limitation Act
22. Section 3(1) of the Public Authorities Limitation Act imposes a strict twelve-month limitation period for tort claims against government entities, including the DPP. If the Respondents had filed their malicious prosecution claim within twelve months of acquittal, the claim would have been timely. They did not.
23. Ordinarily, this would bar the suit against the DPP. However, limitation is a defence that must be raised at the earliest opportunity and must be pleaded. The DPP filed a Memorandum of Appearance and a Statement of Defence, fully engaging the merits and did not plead limitation.
24. The Court of Appeal in Stephen Onyango Achola v Edward Hongo Sule and in Abdullahi Ibrahim Ahmed v Lem Lem Teklue Muzolo held unequivocally that a party who fails to plead limitation cannot raise it later as a Preliminary Objection or during trial unless the defence is amended. The defence may be waived, and where a party elects to submit to jurisdiction, the court is entitled to proceed.
25. The DPP did not raise limitation, did not amend its defence, and submitted to the court’s jurisdiction. The right to rely on limitation was therefore waived.
26. The trial court did not make a specific finding on this objection but was not wrong in declining to strike out the suit. The claim against the DPP remains properly before the Court.
Whether the Preliminary Objection Was Properly Dismissed
27. A valid Preliminary Objection must raise a pure point of law, one that is argued on the assumption that all facts pleaded by the other side are correct. It must not require ascertainment of facts. This principle from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 has been reiterated in numerous Kenyan decisions, including IEBC v Jane Cheperenger [2015] eKLR, where the Supreme Court stressed that contested facts render a Preliminary Objection unsuitable.
28. The Appellant’s objection required the trial court to determine whether the claim was properly one of malicious prosecution or defamation, an inquiry that forced the Court to interpret pleadings, examine factual particulars, and consider the nature of damages pleaded. This is not the type of inquiry contemplated by Mukisa Biscuit. The magistrate therefore arrived at the correct conclusion in declining to uphold the Preliminary Objection.
Costs
29. Costs follow the event. There is no misconduct on the part of the Respondents that would justify a departure from this rule. The Preliminary Objection lacked merit, and the appeal similarly fails. Costs shall therefore be awarded to the 1st and 2nd Respondents.
Disposition
30. Based on the reasons set out above I find and hold that the appeal is without merit. The same is hereby dismissed with costs to the 1st and 2nd Respondents.
Dated and delivered virtually via Microsoft Teams this 27 day of November, 2025
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