Introduction and Background
1. By the Notice of Motion dated 26 th June 2026, the Plaintiff seeks to freeze and preserve the funds held in the Defendant's bank accounts with Ecobank, Stanbic Bank Kenya Limited , and the National Bank of Kenya pending the hearing and determination of this suit. It also seeks an order directing the Defendant to deposit the entire disputed sum of KShs. 158,449,249.00 into a joint interest-earning account held by the advocates on record and an order directing the National Bank of Kenya to issue bank statements for one of the Defendant's accounts.
2. The application is supported by grounds on its face and those contained in the supporting affidavit of the Plaintiff’s director, Zhang Wei, sworn on 26 th June 2026. It is opposed by the Defendant through the Notice of Preliminary Objection dated 3 rd July 2026 which the Plaintiff responded to through the replying affidavit sworn by Zhang Wei on 20 th July 2026. The Objection has been canvassed by way written submissions that I have considered and I will be making relevant references to them in my analysis and determination below.
Analysis and determination
3. The Defendant has stated and submitted that this court lacks the jurisdiction to hear this matter since the suit is barred by section 4(1)(a) of the Limitation of Actions Act , as it was filed more than six years after the cause of action arose as the contract was signed on 29 th March 2019 and the six-year period expired on 29 th March 2025. That Article 24 of the sub-contract agreement specifies that any dispute shall be brought before the People's Court of Donghu District in Nanchang, China, which has exclusive jurisdiction. Further, that this court lacks territorial jurisdiction to hear this matter which ought to have been filed in the High Court at Milimani, Nairobi as per section 15 of the Civil Procedure Act , as both parties are residents of Nairobi and the project was located in Kikuyu, Thogoto and not in Machakos.
4. In response, the Plaintiff avers and submits that the cause of action did not accrue on the date the contract was signed on 29 th March 2019, as the Defendant claims. Instead, the claim arises from specific and later breaches, such as non-payment of Interim Payment Certificates 14 and 15, the Defendant's ongoing monthly reconciliation obligations under Clause 14.2, the final settlement obligation under Clause 14.1, which is triggered only upon project completion and the recent and unilateral removal of the Plaintiff as a signatory to the joint account, which constitutes a fresh breach.
5. The Plaintiff contends that because the date of accrual for each head of claim is a contested question of fact, it cannot be resolved as a pure point of law in a preliminary objection and must be determined through evidence at trial. The Plaintiff challenges the validity of Article 24 which designates a Chinese court as the exclusive forum and it relies on a legal opinion from a Chinese attorney which concludes that the clause is void under Chinese law because the designated Donghu District Court is a basic-level court and lacks jurisdiction over foreign-related commercial disputes and that the clause offends the "actual-connection" requirement under Chinese law, as no relevant connecting factors being the project site and the parties' businesses are located in Nanchang. Further, that a Chinese judgment would be unenforceable in Kenya due to the lack of a bilateral judicial assistance treaty and that the validity of a foreign jurisdiction clause is a question requiring competing expert evidence on foreign law and cannot be determined as a pure point of law in a preliminary objection.
6. The Plaintiff refutes the Defendant's claim that the suit has no connection to Machakos and provides an official Company Search ( CR12 ) showing its registered office is in Athi River, Machakos County, establishing a clear territorial link. It submits that the Defendant's objection is about venue and convenience, not the High Court's subject-matter jurisdiction and that such an objection does not oust the court's power and is a procedural irregularity, not a ground for striking out the suit.The Plaintiff claims that the Defendant is a foreign entity that is winding down its operations in Kenya and has already excluded the Plaintiff from project funds and is using the Objection as a "sword" to delay the hearing of the urgent application to preserve its assets.
7. I have gone through the Objection and the parties’ submissions on the same. As submitted by the Plaintiff, the law on preliminary objections is settled and for one to succeed, the facts pleaded by the other party are assumed to be correct; it must be a matter of law which is capable of disposing off the suit; it must not be blurred by factual details calling for evidence; it must not call upon the Court to exercise discretion (see Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696 and Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR)])
8. I find that the Objection does not pass the muster of a Preliminary Objection as it is riddled with factual arguments that require examination of evidence and the court’s discretion. The date of accrual of the cause of action is a factual question and is clearly disputed by the parties. The Plaintiff pleads continuing breaches and later accrual dates and evidence is required when each head of claim arose. In any event, I am in agreement with the decision of the court (Gikonyo J.,) in Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi [2019] KEHC 2521 (KLR) where it was held that limitation is a matter for trial, not a preliminary objection. It was stated as follows:
13. The law as I understand it is that the defence of limitation of time is a matter for determination at the trial; it cannot be dealt with in a summary manner or at preliminary stage or as a preliminary objection. The court should formulate limitation as one of the issues for determination and decide it on evidence adduced at the trial. On this see the case of Oruta &Another vs. Nyamato [1998] KLR 590 , where the court held that limitation of action:-
’’… could only be queried at the trial but not by… a preliminary objection… The appellant could raise the objection at the trial and the trial judge would have to deal with the matter on the evidence to be adduced at the trial’’
14. See also the case of Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997 , where the court quoted with approval the words of Gachuhi, J.A., the leading judge in the Oruta case (ibid) that:
‘’It will be up to the judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…’’
15. The case of El-Busaidy vs. Commissioner of Lands [2002] KLR 508 , buttressed the above position when it held that the issue of limitation under Government Lands Act could only be decided at the trial on evidence. Accordingly, the intention of the law is that the issue of limitation of actions should be undertaken and determined at the trial.
16. I should also think that the requirement in Order 2 rule 4 (1) of the Civil Procedure Rules that the relevant statute of limitation should be specifically pleaded in the defence underscores the legal necessity to make limitation a matter for determination at the trial. The policy underpinning this position of the law is that a successful defence of limitation makes the claim not maintainable and the plaintiff is not entitled to a remedy. Doubtless, this is a matter that affects rights of the claimant and therefore substantial, for under the Constitution a right cannot be taken away in a summary manner especially where the law requires plenary hearing and determination of the issue. And in this mood, I hear repeated echoes of article 50 of the Constitution on fair hearing that:
50.(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
17. See Order 2 rule 4 of the CPR below on specific pleading and effect of limitation:
4. (1) A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality—
(a) which he alleges makes any claim or defence of the opposite party not maintainable;
(b) which, if not specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues of fact not arising out of the preceding pleading. [Underlining mine]
18. Therefore, the issue of limitation is a substantial question of law and fact which must be decided in a substantive process and manner at the trial. The cases of El-Busaidy ibid, Lulu Drycleaners Ltd & Another vs Kenya Industrial Estates& Another [2005] 2 KLR 97 and Achola & Anr vs. Hongo & Anr [2004] 1 KLR 462 have so held.
9. From the above, it is clear that the Plaintiff has raised credible factual disputes about when the cause of action accrued and the law discourages summary determination of limitation issues. On the objection and contention of the exclusive jurisdiction clause, it is clear that the court would require evidence to ascertain if it exists in the first place. Even if it does, the Plaintiff challenges its validity and it appears the court might need expert evidence on Chinese law on jurisdiction and the foreign law question. I therefore find that this issue requires evidence and cannot be summarily determined.
10. On territorial jurisdiction, this court (the late Majanja J.,) in Jivraj v Ramzan [2023] KEHC 24066 (KLR) stated that the High Court is not limited by territorial jurisdiction. I am in agreement with this position and I find that this Court is a court of unlimited jurisdiction and is not territorially constrained in the manner the Defendant suggests. There is nothing that has been invoked in this matter, that limits the court’s jurisdiction by reference to the location of the subject matter or the parties within Kenya (Also see Saicare Enterprises Limited v Mana Pharmacy & another; Mbusera Auctioneers (Interested Party) [2024] KEHC 12038 (KLR)] .Even if I am to consider the Defendant’s argument that the suit should have been filed in Milimani in Nairobi and that there is no connection with this court, the Plaintiff has produced the CR12 showing its registered office is at Athi River, Machakos County - Plot No. 7885/36, Lukenya. This establishes a direct and factual connection to Machakos and this court and I therefore reiterate that this court has the requisite territorial jurisdiction to determine this matter.
11. Overall, I find that all grounds raised by the Defendant involve factual disputes that are contested by both parties and they require evidence to establish together with the court’s discretion. The issue of limitation of time is substantive and cannot be determined at this preliminary stage by way of a preliminary objection. I am in agreement with the submission of the Plaintiff that the Supreme Court in Independent Electoral & Boundaries Commission v. Jane Cheperenger & 2 Others [2015] KESC 2 (KLR) held as follows:
[16] It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law…
(21) The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement . It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits .”
12. In my view, the Defendant appears to be using the Objection as a sword for delaying the resolution of this matter rather than a shield against the profligate deployment of time and other resources.
Conclusion and Disposition
13. The upshot is the that Preliminary Objection dated 3 rd July 2026 is dismissed with costs. The parties shall file written submissions on the application dated 26 th June 2026 within 14 days of this ruling and the court shall thereafter give further directions on the hearing of the application and highlighting of the submissions. The interim orders in force are extended until the next mention date.
DATED SIGNED AND DELIVERED at MACHAKOS virtually this 31 ST DAY OF JULY 2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Ondari holding brief for Ms. Kisoon for the Plaintiff/Applicant
2. Mr. Gakuru for the Defendant/ Respondent
3. Mr. Mutua for National Bank of Kenya
4. Amos/Godfrey- Court Assistant
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1. By the Notice of Motion dated 26 th June 2026, the Plaintiff seeks to freeze and preserve the funds held in the Defendant's bank accounts with Ecobank, Stanbic Bank Kenya Limited , and the National Bank of Kenya pending the hearing and determination of this suit. It also seeks an order directing the Defendant to deposit the entire disputed sum of KShs. 158,449,249.00 into a joint interest-earning account held by the advocates on record and an order directing the National Bank of Kenya to issue bank statements for one of the Defendant's accounts.
2. The application is supported by grounds on its face and those contained in the supporting affidavit of the Plaintiff’s director, Zhang Wei, sworn on 26 th June 2026. It is opposed by the Defendant through the Notice of Preliminary Objection dated 3 rd July 2026 which the Plaintiff responded to through the replying affidavit sworn by Zhang Wei on 20 th July 2026. The Objection has been canvassed by way written submissions that I have considered and I will be making relevant references to them in my analysis and determination below.
Analysis and determination
3. The Defendant has stated and submitted that this court lacks the jurisdiction to hear this matter since the suit is barred by section 4(1)(a) of the Limitation of Actions Act , as it was filed more than six years after the cause of action arose as the contract was signed on 29 th March 2019 and the six-year period expired on 29 th March 2025. That Article 24 of the sub-contract agreement specifies that any dispute shall be brought before the People's Court of Donghu District in Nanchang, China, which has exclusive jurisdiction. Further, that this court lacks territorial jurisdiction to hear this matter which ought to have been filed in the High Court at Milimani, Nairobi as per section 15 of the Civil Procedure Act , as both parties are residents of Nairobi and the project was located in Kikuyu, Thogoto and not in Machakos.
4. In response, the Plaintiff avers and submits that the cause of action did not accrue on the date the contract was signed on 29 th March 2019, as the Defendant claims. Instead, the claim arises from specific and later breaches, such as non-payment of Interim Payment Certificates 14 and 15, the Defendant's ongoing monthly reconciliation obligations under Clause 14.2, the final settlement obligation under Clause 14.1, which is triggered only upon project completion and the recent and unilateral removal of the Plaintiff as a signatory to the joint account, which constitutes a fresh breach.
5. The Plaintiff contends that because the date of accrual for each head of claim is a contested question of fact, it cannot be resolved as a pure point of law in a preliminary objection and must be determined through evidence at trial. The Plaintiff challenges the validity of Article 24 which designates a Chinese court as the exclusive forum and it relies on a legal opinion from a Chinese attorney which concludes that the clause is void under Chinese law because the designated Donghu District Court is a basic-level court and lacks jurisdiction over foreign-related commercial disputes and that the clause offends the "actual-connection" requirement under Chinese law, as no relevant connecting factors being the project site and the parties' businesses are located in Nanchang. Further, that a Chinese judgment would be unenforceable in Kenya due to the lack of a bilateral judicial assistance treaty and that the validity of a foreign jurisdiction clause is a question requiring competing expert evidence on foreign law and cannot be determined as a pure point of law in a preliminary objection.
6. The Plaintiff refutes the Defendant's claim that the suit has no connection to Machakos and provides an official Company Search ( CR12 ) showing its registered office is in Athi River, Machakos County, establishing a clear territorial link. It submits that the Defendant's objection is about venue and convenience, not the High Court's subject-matter jurisdiction and that such an objection does not oust the court's power and is a procedural irregularity, not a ground for striking out the suit.The Plaintiff claims that the Defendant is a foreign entity that is winding down its operations in Kenya and has already excluded the Plaintiff from project funds and is using the Objection as a "sword" to delay the hearing of the urgent application to preserve its assets.
7. I have gone through the Objection and the parties’ submissions on the same. As submitted by the Plaintiff, the law on preliminary objections is settled and for one to succeed, the facts pleaded by the other party are assumed to be correct; it must be a matter of law which is capable of disposing off the suit; it must not be blurred by factual details calling for evidence; it must not call upon the Court to exercise discretion (see Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696 and Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR)])
8. I find that the Objection does not pass the muster of a Preliminary Objection as it is riddled with factual arguments that require examination of evidence and the court’s discretion. The date of accrual of the cause of action is a factual question and is clearly disputed by the parties. The Plaintiff pleads continuing breaches and later accrual dates and evidence is required when each head of claim arose. In any event, I am in agreement with the decision of the court (Gikonyo J.,) in Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi [2019] KEHC 2521 (KLR) where it was held that limitation is a matter for trial, not a preliminary objection. It was stated as follows:
13. The law as I understand it is that the defence of limitation of time is a matter for determination at the trial; it cannot be dealt with in a summary manner or at preliminary stage or as a preliminary objection. The court should formulate limitation as one of the issues for determination and decide it on evidence adduced at the trial. On this see the case of Oruta &Another vs. Nyamato [1998] KLR 590 , where the court held that limitation of action:-
’’… could only be queried at the trial but not by… a preliminary objection… The appellant could raise the objection at the trial and the trial judge would have to deal with the matter on the evidence to be adduced at the trial’’
14. See also the case of Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997 , where the court quoted with approval the words of Gachuhi, J.A., the leading judge in the Oruta case (ibid) that:
‘’It will be up to the judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…’’
15. The case of El-Busaidy vs. Commissioner of Lands [2002] KLR 508 , buttressed the above position when it held that the issue of limitation under Government Lands Act could only be decided at the trial on evidence. Accordingly, the intention of the law is that the issue of limitation of actions should be undertaken and determined at the trial.
16. I should also think that the requirement in Order 2 rule 4 (1) of the Civil Procedure Rules that the relevant statute of limitation should be specifically pleaded in the defence underscores the legal necessity to make limitation a matter for determination at the trial. The policy underpinning this position of the law is that a successful defence of limitation makes the claim not maintainable and the plaintiff is not entitled to a remedy. Doubtless, this is a matter that affects rights of the claimant and therefore substantial, for under the Constitution a right cannot be taken away in a summary manner especially where the law requires plenary hearing and determination of the issue. And in this mood, I hear repeated echoes of article 50 of the Constitution on fair hearing that:
50.(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
17. See Order 2 rule 4 of the CPR below on specific pleading and effect of limitation:
4. (1) A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality—
(a) which he alleges makes any claim or defence of the opposite party not maintainable;
(b) which, if not specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues of fact not arising out of the preceding pleading. [Underlining mine]
18. Therefore, the issue of limitation is a substantial question of law and fact which must be decided in a substantive process and manner at the trial. The cases of El-Busaidy ibid, Lulu Drycleaners Ltd & Another vs Kenya Industrial Estates& Another [2005] 2 KLR 97 and Achola & Anr vs. Hongo & Anr [2004] 1 KLR 462 have so held.
9. From the above, it is clear that the Plaintiff has raised credible factual disputes about when the cause of action accrued and the law discourages summary determination of limitation issues. On the objection and contention of the exclusive jurisdiction clause, it is clear that the court would require evidence to ascertain if it exists in the first place. Even if it does, the Plaintiff challenges its validity and it appears the court might need expert evidence on Chinese law on jurisdiction and the foreign law question. I therefore find that this issue requires evidence and cannot be summarily determined.
10. On territorial jurisdiction, this court (the late Majanja J.,) in Jivraj v Ramzan [2023] KEHC 24066 (KLR) stated that the High Court is not limited by territorial jurisdiction. I am in agreement with this position and I find that this Court is a court of unlimited jurisdiction and is not territorially constrained in the manner the Defendant suggests. There is nothing that has been invoked in this matter, that limits the court’s jurisdiction by reference to the location of the subject matter or the parties within Kenya (Also see Saicare Enterprises Limited v Mana Pharmacy & another; Mbusera Auctioneers (Interested Party) [2024] KEHC 12038 (KLR)] .Even if I am to consider the Defendant’s argument that the suit should have been filed in Milimani in Nairobi and that there is no connection with this court, the Plaintiff has produced the CR12 showing its registered office is at Athi River, Machakos County - Plot No. 7885/36, Lukenya. This establishes a direct and factual connection to Machakos and this court and I therefore reiterate that this court has the requisite territorial jurisdiction to determine this matter.
11. Overall, I find that all grounds raised by the Defendant involve factual disputes that are contested by both parties and they require evidence to establish together with the court’s discretion. The issue of limitation of time is substantive and cannot be determined at this preliminary stage by way of a preliminary objection. I am in agreement with the submission of the Plaintiff that the Supreme Court in Independent Electoral & Boundaries Commission v. Jane Cheperenger & 2 Others [2015] KESC 2 (KLR) held as follows:
[16] It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law…
(21) The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement . It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits .”
12. In my view, the Defendant appears to be using the Objection as a sword for delaying the resolution of this matter rather than a shield against the profligate deployment of time and other resources.
Conclusion and Disposition
13. The upshot is the that Preliminary Objection dated 3 rd July 2026 is dismissed with costs. The parties shall file written submissions on the application dated 26 th June 2026 within 14 days of this ruling and the court shall thereafter give further directions on the hearing of the application and highlighting of the submissions. The interim orders in force are extended until the next mention date.
DATED SIGNED AND DELIVERED at MACHAKOS virtually this 31 ST DAY OF JULY 2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Ondari holding brief for Ms. Kisoon for the Plaintiff/Applicant
2. Mr. Gakuru for the Defendant/ Respondent
3. Mr. Mutua for National Bank of Kenya
4. Amos/Godfrey- Court Assistant
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