Background
1. Before the Court is the 1st, 2nd, 3rd and 4th Defendants’ Notice of Preliminary Objection dated 16th January 2026. It challenges the competence of the Plaintiff’s suit as constituted by the Amended Plaint dated 18th November 2025.
2. The Preliminary Objection is founded on the following grounds:
a) That, pursuant to Section 3(2) of the Public Authorities Limitation Act, Cap. 39 Laws of Kenya, the Plaintiff’s claim is statute-barred;
b) That, pursuant to Section 4(1)(a) of the Limitation of Actions Act, Cap. 22 Laws of Kenya, the suit is time-barred; and
c) That the suit, as presently constituted, is incompetent and unsustainable and, consequently, this Court lacks jurisdiction to entertain it.
3. The Defendants accordingly pray that the suit be dismissed or struck out in limine, with costs.
4. The Preliminary Objection was canvassed through written submissions. The Defendants filed submissions dated 6th March 2026, while the Plaintiff filed submissions in opposition thereto.
5. The suit was originally commenced through a Plaint dated 2nd November 2018 in the name of Chitugul Merchants Limited. The claim arises from construction works allegedly undertaken at Moi Kapsowar Girls High School. The Plaintiff seeks recovery of an outstanding contractual balance of Kshs.43,779,978, together with interest and costs.
6. The trial commenced on 2nd December 2024, when Eliud Wahome Gitahi testified as PW1 and completed his evidence-in-chief. His cross-examination was subsequently adjourned.
7. The then Plaintiff thereafter filed a Notice of Motion dated 13th January 2025 seeking leave to amend the Plaint by substituting Chitugul Merchants Limited with Eliud Wahome Gitahi trading as Chitugul Merchants.
8. The explanation offered was that the relevant construction contracts were entered into by Mr Gitahi under his registered business name before or during the incorporation of Chitugul Merchants Limited.
9. The Defendants opposed that application. Among the grounds advanced was that the proposed amendment would substitute the existing Plaintiff with a legally distinct person after considerable delay and would prejudice the Defendants.
10. In a ruling delivered on 3rd October 2025, the Court considered Section 100 of the Civil Procedure Act and Order 8 rule 3 of the Civil Procedure Rules. It permitted an amendment limited to altering the Plaintiff’s description or legal character from a limited company to Eliud Wahome Gitahi trading as Chitugul Merchants.
11. The Court rejected the proposed amendments that sought to introduce additional contracts, facts and a revised monetary claim. Pursuant to that ruling, the Plaintiff filed the Amended Plaint dated 18th November 2025. It is against that amended pleading that the present Preliminary Objection has been raised.
The Defendants’ case
12. The Defendants submit that the Preliminary Objection raises a pure point of law within the meaning of Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696. They contend that limitation affects the Court’s jurisdiction and should be determined at the earliest opportunity.
13. According to the Defendants, the Plaintiff’s claim arises from construction contracts allegedly entered into in 2013 and 2014. They argue that the cause of action accrued when the Defendants failed to pay for the construction works and that the applicable limitation periods have since expired.
14. The Defendants rely on Section 4(1)(a) of the Limitation of Actions Act, which prescribes a limitation period of six years for actions founded on contract. They also invoke Section 3(2) of the Public Authorities Limitation Act, which prescribes a period of three years for contractual proceedings against the Government or a local authority.
15. Their principal argument is that the amendment made in 2025 introduced a new Plaintiff long after expiry of the applicable limitation periods.
16. Relying on Salomon v A. Salomon & Co. Ltd [1897] AC 22, the Defendants submit that Chitugul Merchants Limited is a legal person distinct from Eliud Wahome Gitahi trading as Chitugul Merchants. The amendment was therefore not merely a correction of a name or description but a substitution of one legal person with another.
17. The Defendants further rely on Divecon Limited v Samani [1995–1998] 1 EA 48, Rawal v Rawal [1990] KLR 275 and Central Kenya Limited v Trust Bank Limited & 5 Others [2000] KECA 367 (KLR). They submit that an amendment cannot be used to defeat an accrued limitation defence.
18. They consequently contend that the present Plaintiff only became a party to the proceedings in November 2025, more than a decade after the alleged construction contracts, and that the suit should therefore be struck out.
The Plaintiff’s case
19. The Plaintiff opposes the Preliminary Objection. He submits that the cause of action did not accrue when the tender was awarded or when construction commenced.
20. According to the Plaintiff, default became apparent on 10th June 2016 when he first requested payment from the Defendants. He contends that the original suit, having been filed through the Plaint dated 2nd November 2018, was commenced within three years of the alleged default.
21. The Plaintiff further relies on alleged part payments made on 2nd February 2017 and a subsequent agreement which, in his view, acknowledged the outstanding debt.
22. He submits that the part payment and acknowledgment postponed the running of time or revived the cause of action under Sections 23 and 24 of the Limitation of Actions Act. He relies on, among other authorities, Patel & Another v Patel [2001] EA and Monarch Insurance Company Limited v Disney Insurance Brokers Limited [2021] eKLR.
23. The Plaintiff accordingly contends that the suit is not statute-barred and urges the Court to dismiss the Preliminary Objection with costs.
Analysis and determination
Whether the objection raises a pure point of law
25. The principles governing preliminary objections were settled in Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696. Law JA stated: “A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit.”
26. Sir Charles Newbold P explained that a preliminary objection raises a pure point of law and is argued on the assumption that all the facts pleaded by the opposite party are correct. It cannot be raised where facts must be ascertained or where the Court is required to exercise judicial discretion.
27. The same principle was restated in Oraro v Mbaja [2005] 1 KLR 141, where the Court held that a preliminary objection must not be blurred by factual details liable to be contested and requiring proof through evidence.
28. Limitation may properly be raised by way of a preliminary objection where the date of accrual is admitted or ascertainable from the pleadings. However, where the determination of limitation depends upon disputed facts concerning the accrual of the cause of action, performance, payment or acknowledgment, the issue cannot properly be determined as a pure point of law.
29. Section 4(1)(a) of the Limitation of Actions Act provides: “The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract.”
30. Section 3(2) of the Public Authorities Limitation Act provides: “No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.”
31. Under both provisions, the material date is when the cause of action accrued. In a contractual claim, the cause of action ordinarily accrues when a party fails to perform an obligation that has become contractually due.
32. The dates upon which a contract was executed or construction works commenced do not necessarily constitute the dates upon which a cause of action for non-payment accrued. The Court must identify when payment became due and when the failure to make that payment constituted a breach.
33. The Defendants rely principally on the assertion that the tender was awarded and the construction works commenced in 2013 or 2014. Those dates may establish the origin of the contractual relationship, but they do not, without more, establish when payment became due or when the alleged breach occurred.
34. The Amended Plaint does not disclose a definite date when the construction works were completed, when they were certified, when the outstanding payment became due or when payment was refused. The Defendants’ submission that limitation expired in or about 2020 is therefore based upon an assumed accrual date rather than an admitted date apparent from the pleadings.
35. The Plaintiff, on the other hand, maintains that default became apparent on 10th June 2016. He further relies upon alleged part payments made on 2nd February 2017 and a subsequent acknowledgment of the outstanding debt.
36. It must be emphasised that a demand letter does not, by itself, postpone the commencement of limitation where a contractual obligation had already fallen due. The relevant question remains when the obligation to pay arose under the parties’ contract. That question can only be determined upon examination of the contractual documents, certificates, correspondence and evidence.
37. Sections 23 and 24 of the Limitation of Actions Act provide for the effect and formal requirements of acknowledgment and part payment. Section 6 of the Public Authorities Limitation Act makes Part III of the Limitation of Actions Act applicable to proceedings governed by that Act, subject to the stated qualifications.
38. Whether the documents and payments relied upon by the Plaintiff satisfy those statutory requirements is an evidentiary question. The Court would have to determine whether the alleged acknowledgment related to the debt now claimed, whether it was in writing and signed by the person liable or an authorised agent, and whether the alleged part payment was made towards that debt.
39. In Patel & Another v Patel [2001] EA, the Court recognised that part payment may amount to acknowledgment of a debt and may give rise to a fresh accrual date. Similarly, Monarch Insurance Company Limited v Disney Insurance Brokers Limited [2021] eKLR considered the effect of correspondence and payments said to constitute an acknowledgment of indebtedness.
40. Those authorities do not permit the Court to assume that the alleged acknowledgment and part payment in the present case have been established. Their existence, validity and effect must be proved through evidence.
41. The Plaintiff also invoked the doctrine of res ipsa loquitur. That doctrine has no application to the present contractual dispute. Nevertheless, the inapplicability of that doctrine does not resolve the contested questions concerning payment and acknowledgment.
42. The decisions in Divecon Limited v Samani and Rawal v Rawal correctly affirm the mandatory nature and purpose of limitation statutes. Limitation provisions protect Defendants against stale claims and the prejudice that may arise from loss of evidence over time. Those decisions do not, however, dispense with the need to identify the date upon which the cause of action accrued.
43. The Court cannot conclude that a claim is time-barred before determining the legally relevant accrual date. In the present case, that date cannot be ascertained conclusively from the Amended Plaint without considering evidence.
44. I therefore find that the limitation question is intertwined with disputed factual matters and does not, in the circumstances of this case, satisfy the threshold of a pure preliminary objection.
45. The Defendants’ second argument is that the amendment introduced a different Plaintiff in November 2025, after expiry of the applicable limitation period.
46. The principle in Salomon v A. Salomon & Co. Ltd [1897] AC 22 is that, upon incorporation, a company becomes a legal person separate and distinct from its shareholders and directors. Conversely, a registered business name does not create a legal person separate from the individual carrying on business under that name.
47. The legal distinction between Chitugul Merchants Limited and Eliud Wahome Gitahi trading as Chitugul Merchants is therefore not merely semantic. However, that distinction was expressly placed before the Court during the hearing of the application for amendment.
48. In opposing that application, the Defendants argued that the proposed amendment would substitute the Plaintiff with an entirely different legal person and would affect the competence of the original suit.
49. The Court considered those arguments together with Section 100 of the Civil Procedure Act and Order 8 rule 3 of the Civil Procedure Rules. Order 8 rule 3(2) permits the Court, where it considers it just, to allow specified amendments notwithstanding that the relevant limitation period has expired.
50. Order 8 rule 3(3) specifically permits correction of the name of a party notwithstanding an allegation that the effect of the amendment would be to substitute a new party, provided the requirements of that rule are satisfied. Rule 3(4) similarly permits alteration of the capacity in which a party sues in the circumstances prescribed therein.
51. In its ruling delivered on 3rd October 2025, the Court permitted amendment of the Plaintiff’s description or legal character from a limited company to Eliud Wahome Gitahi trading as Chitugul Merchants. It rejected every other proposed substantive amendment.
52. That ruling has not been reviewed, varied, set aside or overturned on appeal. The Amended Plaint was therefore filed pursuant to an existing and binding order of the Court.
53. The present Preliminary Objection cannot be used as a collateral avenue for challenging the correctness of the order allowing the amendment. To accept the Defendants’ argument that the amendment was incapable of substituting or correcting the Plaintiff would require this Court to reconsider and effectively reverse its ruling of 3rd October 2025. The Court cannot sit on appeal over its own decision.
54. The earlier ruling did not conclusively determine whether the underlying contractual claim was filed within the applicable limitation period. That substantive defence remains available to the Defendants. What the ruling determined was that the Plaintiff could amend the existing suit in the limited manner authorised by the Court.
55. Unless the order permitting amendment is set aside through a legally recognised process, the Amended Plaint cannot be treated as an entirely fresh suit instituted on 18th November 2025.
56. In Central Kenya Limited v Trust Bank Limited & 5 Others [2000] KECA 367 (KLR), the Court of Appeal affirmed that amendments should generally be allowed where they are necessary for determining the real questions in controversy, provided they do not occasion injustice or prejudice that cannot be compensated by costs. The Court also recognised the need to protect accrued limitation defences.
57. That authority must be considered together with Order 8 rule 3, which expressly empowers the Court to permit specified amendments notwithstanding expiry of limitation. In the present matter, that discretion was already exercised in the ruling of 3rd October 2025.
58. Significantly, the Defendants acknowledge in paragraphs 33 and 42 of their submissions that the original suit filed in 2018 “may have been within the limitation period.” Their argument therefore does not demonstrate that the substantive claim was unquestionably time-barred when the proceedings were commenced. It depends principally upon treating the permitted amendment as the institution of a new suit in November 2025.
59. For the reasons already given, that contention cannot be sustained through the present Preliminary Objection.
60. I consequently find that the amendment did not extinguish the Defendants’ right to pursue limitation as a substantive defence at the trial. Equally, however, it does not permit the Defendants to disregard or collaterally reopen the order under which the amendment was made.
Costs
61. The final issue concerns costs. Section 27(1) of the Civil Procedure Act gives the Court discretion to determine by whom and to what extent costs are to be paid, subject to the general principle that costs follow the event unless the Court, for good reason, orders otherwise.
62. In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR, the Supreme Court held that the award of costs is a matter of judicial discretion. Although costs ordinarily follow the event, that principle does not fetter the Court’s discretion. The discretion must be exercised judicially and having regard to the circumstances of each case, the conduct of the parties and the ends of justice.
63. In the present case, the Plaintiff has successfully defended the Preliminary Objection. Although the Defendants were entitled to raise the limitation question, the objection also sought to reopen the legal effect of an amendment that had already been authorised by the Court. I find no sufficient reason to depart from the general principle that costs follow the event. The Plaintiff shall therefore have the costs of the Preliminary Objection.
Disposition
64. Limitation provisions serve the important purpose of preventing the prosecution of stale claims and protecting Defendants against prejudice caused by the passage of time. The Court must nevertheless determine such a defence upon a proper factual and legal foundation.
65. In the present case, the date upon which the contractual cause of action accrued is neither expressly pleaded nor admitted. The parties also contest the existence and legal effect of the alleged part payments and acknowledgment of the debt. Those questions require examination of evidence and cannot properly be determined by way of a preliminary objection.
66. Further, the argument that the amendment made in November 2025 impermissibly introduced a new Plaintiff substantially reopens an issue already considered and determined in the ruling delivered on 3rd October 2025.
orders:
a) The Defendants’ Preliminary Objection dated 16th January 2026 is hereby dismissed.
b) For avoidance of doubt, dismissal of the Preliminary Objection does not constitute a final determination that the Plaintiff’s claim was instituted within the legal structure.
c) The costs of the Preliminary Objection are awarded to the Plaintiff.
Orders accordingly.
1. Before the Court is the 1st, 2nd, 3rd and 4th Defendants’ Notice of Preliminary Objection dated 16th January 2026. It challenges the competence of the Plaintiff’s suit as constituted by the Amended Plaint dated 18th November 2025.
2. The Preliminary Objection is founded on the following grounds:
a) That, pursuant to Section 3(2) of the Public Authorities Limitation Act, Cap. 39 Laws of Kenya, the Plaintiff’s claim is statute-barred;
b) That, pursuant to Section 4(1)(a) of the Limitation of Actions Act, Cap. 22 Laws of Kenya, the suit is time-barred; and
c) That the suit, as presently constituted, is incompetent and unsustainable and, consequently, this Court lacks jurisdiction to entertain it.
3. The Defendants accordingly pray that the suit be dismissed or struck out in limine, with costs.
4. The Preliminary Objection was canvassed through written submissions. The Defendants filed submissions dated 6th March 2026, while the Plaintiff filed submissions in opposition thereto.
5. The suit was originally commenced through a Plaint dated 2nd November 2018 in the name of Chitugul Merchants Limited. The claim arises from construction works allegedly undertaken at Moi Kapsowar Girls High School. The Plaintiff seeks recovery of an outstanding contractual balance of Kshs.43,779,978, together with interest and costs.
6. The trial commenced on 2nd December 2024, when Eliud Wahome Gitahi testified as PW1 and completed his evidence-in-chief. His cross-examination was subsequently adjourned.
7. The then Plaintiff thereafter filed a Notice of Motion dated 13th January 2025 seeking leave to amend the Plaint by substituting Chitugul Merchants Limited with Eliud Wahome Gitahi trading as Chitugul Merchants.
8. The explanation offered was that the relevant construction contracts were entered into by Mr Gitahi under his registered business name before or during the incorporation of Chitugul Merchants Limited.
9. The Defendants opposed that application. Among the grounds advanced was that the proposed amendment would substitute the existing Plaintiff with a legally distinct person after considerable delay and would prejudice the Defendants.
10. In a ruling delivered on 3rd October 2025, the Court considered Section 100 of the Civil Procedure Act and Order 8 rule 3 of the Civil Procedure Rules. It permitted an amendment limited to altering the Plaintiff’s description or legal character from a limited company to Eliud Wahome Gitahi trading as Chitugul Merchants.
11. The Court rejected the proposed amendments that sought to introduce additional contracts, facts and a revised monetary claim. Pursuant to that ruling, the Plaintiff filed the Amended Plaint dated 18th November 2025. It is against that amended pleading that the present Preliminary Objection has been raised.
The Defendants’ case
12. The Defendants submit that the Preliminary Objection raises a pure point of law within the meaning of Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696. They contend that limitation affects the Court’s jurisdiction and should be determined at the earliest opportunity.
13. According to the Defendants, the Plaintiff’s claim arises from construction contracts allegedly entered into in 2013 and 2014. They argue that the cause of action accrued when the Defendants failed to pay for the construction works and that the applicable limitation periods have since expired.
14. The Defendants rely on Section 4(1)(a) of the Limitation of Actions Act, which prescribes a limitation period of six years for actions founded on contract. They also invoke Section 3(2) of the Public Authorities Limitation Act, which prescribes a period of three years for contractual proceedings against the Government or a local authority.
15. Their principal argument is that the amendment made in 2025 introduced a new Plaintiff long after expiry of the applicable limitation periods.
16. Relying on Salomon v A. Salomon & Co. Ltd [1897] AC 22, the Defendants submit that Chitugul Merchants Limited is a legal person distinct from Eliud Wahome Gitahi trading as Chitugul Merchants. The amendment was therefore not merely a correction of a name or description but a substitution of one legal person with another.
17. The Defendants further rely on Divecon Limited v Samani [1995–1998] 1 EA 48, Rawal v Rawal [1990] KLR 275 and Central Kenya Limited v Trust Bank Limited & 5 Others [2000] KECA 367 (KLR). They submit that an amendment cannot be used to defeat an accrued limitation defence.
18. They consequently contend that the present Plaintiff only became a party to the proceedings in November 2025, more than a decade after the alleged construction contracts, and that the suit should therefore be struck out.
The Plaintiff’s case
19. The Plaintiff opposes the Preliminary Objection. He submits that the cause of action did not accrue when the tender was awarded or when construction commenced.
20. According to the Plaintiff, default became apparent on 10th June 2016 when he first requested payment from the Defendants. He contends that the original suit, having been filed through the Plaint dated 2nd November 2018, was commenced within three years of the alleged default.
21. The Plaintiff further relies on alleged part payments made on 2nd February 2017 and a subsequent agreement which, in his view, acknowledged the outstanding debt.
22. He submits that the part payment and acknowledgment postponed the running of time or revived the cause of action under Sections 23 and 24 of the Limitation of Actions Act. He relies on, among other authorities, Patel & Another v Patel [2001] EA and Monarch Insurance Company Limited v Disney Insurance Brokers Limited [2021] eKLR.
23. The Plaintiff accordingly contends that the suit is not statute-barred and urges the Court to dismiss the Preliminary Objection with costs.
Analysis and determination
Whether the objection raises a pure point of law
25. The principles governing preliminary objections were settled in Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696. Law JA stated: “A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit.”
26. Sir Charles Newbold P explained that a preliminary objection raises a pure point of law and is argued on the assumption that all the facts pleaded by the opposite party are correct. It cannot be raised where facts must be ascertained or where the Court is required to exercise judicial discretion.
27. The same principle was restated in Oraro v Mbaja [2005] 1 KLR 141, where the Court held that a preliminary objection must not be blurred by factual details liable to be contested and requiring proof through evidence.
28. Limitation may properly be raised by way of a preliminary objection where the date of accrual is admitted or ascertainable from the pleadings. However, where the determination of limitation depends upon disputed facts concerning the accrual of the cause of action, performance, payment or acknowledgment, the issue cannot properly be determined as a pure point of law.
29. Section 4(1)(a) of the Limitation of Actions Act provides: “The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract.”
30. Section 3(2) of the Public Authorities Limitation Act provides: “No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.”
31. Under both provisions, the material date is when the cause of action accrued. In a contractual claim, the cause of action ordinarily accrues when a party fails to perform an obligation that has become contractually due.
32. The dates upon which a contract was executed or construction works commenced do not necessarily constitute the dates upon which a cause of action for non-payment accrued. The Court must identify when payment became due and when the failure to make that payment constituted a breach.
33. The Defendants rely principally on the assertion that the tender was awarded and the construction works commenced in 2013 or 2014. Those dates may establish the origin of the contractual relationship, but they do not, without more, establish when payment became due or when the alleged breach occurred.
34. The Amended Plaint does not disclose a definite date when the construction works were completed, when they were certified, when the outstanding payment became due or when payment was refused. The Defendants’ submission that limitation expired in or about 2020 is therefore based upon an assumed accrual date rather than an admitted date apparent from the pleadings.
35. The Plaintiff, on the other hand, maintains that default became apparent on 10th June 2016. He further relies upon alleged part payments made on 2nd February 2017 and a subsequent acknowledgment of the outstanding debt.
36. It must be emphasised that a demand letter does not, by itself, postpone the commencement of limitation where a contractual obligation had already fallen due. The relevant question remains when the obligation to pay arose under the parties’ contract. That question can only be determined upon examination of the contractual documents, certificates, correspondence and evidence.
37. Sections 23 and 24 of the Limitation of Actions Act provide for the effect and formal requirements of acknowledgment and part payment. Section 6 of the Public Authorities Limitation Act makes Part III of the Limitation of Actions Act applicable to proceedings governed by that Act, subject to the stated qualifications.
38. Whether the documents and payments relied upon by the Plaintiff satisfy those statutory requirements is an evidentiary question. The Court would have to determine whether the alleged acknowledgment related to the debt now claimed, whether it was in writing and signed by the person liable or an authorised agent, and whether the alleged part payment was made towards that debt.
39. In Patel & Another v Patel [2001] EA, the Court recognised that part payment may amount to acknowledgment of a debt and may give rise to a fresh accrual date. Similarly, Monarch Insurance Company Limited v Disney Insurance Brokers Limited [2021] eKLR considered the effect of correspondence and payments said to constitute an acknowledgment of indebtedness.
40. Those authorities do not permit the Court to assume that the alleged acknowledgment and part payment in the present case have been established. Their existence, validity and effect must be proved through evidence.
41. The Plaintiff also invoked the doctrine of res ipsa loquitur. That doctrine has no application to the present contractual dispute. Nevertheless, the inapplicability of that doctrine does not resolve the contested questions concerning payment and acknowledgment.
42. The decisions in Divecon Limited v Samani and Rawal v Rawal correctly affirm the mandatory nature and purpose of limitation statutes. Limitation provisions protect Defendants against stale claims and the prejudice that may arise from loss of evidence over time. Those decisions do not, however, dispense with the need to identify the date upon which the cause of action accrued.
43. The Court cannot conclude that a claim is time-barred before determining the legally relevant accrual date. In the present case, that date cannot be ascertained conclusively from the Amended Plaint without considering evidence.
44. I therefore find that the limitation question is intertwined with disputed factual matters and does not, in the circumstances of this case, satisfy the threshold of a pure preliminary objection.
45. The Defendants’ second argument is that the amendment introduced a different Plaintiff in November 2025, after expiry of the applicable limitation period.
46. The principle in Salomon v A. Salomon & Co. Ltd [1897] AC 22 is that, upon incorporation, a company becomes a legal person separate and distinct from its shareholders and directors. Conversely, a registered business name does not create a legal person separate from the individual carrying on business under that name.
47. The legal distinction between Chitugul Merchants Limited and Eliud Wahome Gitahi trading as Chitugul Merchants is therefore not merely semantic. However, that distinction was expressly placed before the Court during the hearing of the application for amendment.
48. In opposing that application, the Defendants argued that the proposed amendment would substitute the Plaintiff with an entirely different legal person and would affect the competence of the original suit.
49. The Court considered those arguments together with Section 100 of the Civil Procedure Act and Order 8 rule 3 of the Civil Procedure Rules. Order 8 rule 3(2) permits the Court, where it considers it just, to allow specified amendments notwithstanding that the relevant limitation period has expired.
50. Order 8 rule 3(3) specifically permits correction of the name of a party notwithstanding an allegation that the effect of the amendment would be to substitute a new party, provided the requirements of that rule are satisfied. Rule 3(4) similarly permits alteration of the capacity in which a party sues in the circumstances prescribed therein.
51. In its ruling delivered on 3rd October 2025, the Court permitted amendment of the Plaintiff’s description or legal character from a limited company to Eliud Wahome Gitahi trading as Chitugul Merchants. It rejected every other proposed substantive amendment.
52. That ruling has not been reviewed, varied, set aside or overturned on appeal. The Amended Plaint was therefore filed pursuant to an existing and binding order of the Court.
53. The present Preliminary Objection cannot be used as a collateral avenue for challenging the correctness of the order allowing the amendment. To accept the Defendants’ argument that the amendment was incapable of substituting or correcting the Plaintiff would require this Court to reconsider and effectively reverse its ruling of 3rd October 2025. The Court cannot sit on appeal over its own decision.
54. The earlier ruling did not conclusively determine whether the underlying contractual claim was filed within the applicable limitation period. That substantive defence remains available to the Defendants. What the ruling determined was that the Plaintiff could amend the existing suit in the limited manner authorised by the Court.
55. Unless the order permitting amendment is set aside through a legally recognised process, the Amended Plaint cannot be treated as an entirely fresh suit instituted on 18th November 2025.
56. In Central Kenya Limited v Trust Bank Limited & 5 Others [2000] KECA 367 (KLR), the Court of Appeal affirmed that amendments should generally be allowed where they are necessary for determining the real questions in controversy, provided they do not occasion injustice or prejudice that cannot be compensated by costs. The Court also recognised the need to protect accrued limitation defences.
57. That authority must be considered together with Order 8 rule 3, which expressly empowers the Court to permit specified amendments notwithstanding expiry of limitation. In the present matter, that discretion was already exercised in the ruling of 3rd October 2025.
58. Significantly, the Defendants acknowledge in paragraphs 33 and 42 of their submissions that the original suit filed in 2018 “may have been within the limitation period.” Their argument therefore does not demonstrate that the substantive claim was unquestionably time-barred when the proceedings were commenced. It depends principally upon treating the permitted amendment as the institution of a new suit in November 2025.
59. For the reasons already given, that contention cannot be sustained through the present Preliminary Objection.
60. I consequently find that the amendment did not extinguish the Defendants’ right to pursue limitation as a substantive defence at the trial. Equally, however, it does not permit the Defendants to disregard or collaterally reopen the order under which the amendment was made.
Costs
61. The final issue concerns costs. Section 27(1) of the Civil Procedure Act gives the Court discretion to determine by whom and to what extent costs are to be paid, subject to the general principle that costs follow the event unless the Court, for good reason, orders otherwise.
62. In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR, the Supreme Court held that the award of costs is a matter of judicial discretion. Although costs ordinarily follow the event, that principle does not fetter the Court’s discretion. The discretion must be exercised judicially and having regard to the circumstances of each case, the conduct of the parties and the ends of justice.
63. In the present case, the Plaintiff has successfully defended the Preliminary Objection. Although the Defendants were entitled to raise the limitation question, the objection also sought to reopen the legal effect of an amendment that had already been authorised by the Court. I find no sufficient reason to depart from the general principle that costs follow the event. The Plaintiff shall therefore have the costs of the Preliminary Objection.
Disposition
64. Limitation provisions serve the important purpose of preventing the prosecution of stale claims and protecting Defendants against prejudice caused by the passage of time. The Court must nevertheless determine such a defence upon a proper factual and legal foundation.
65. In the present case, the date upon which the contractual cause of action accrued is neither expressly pleaded nor admitted. The parties also contest the existence and legal effect of the alleged part payments and acknowledgment of the debt. Those questions require examination of evidence and cannot properly be determined by way of a preliminary objection.
66. Further, the argument that the amendment made in November 2025 impermissibly introduced a new Plaintiff substantially reopens an issue already considered and determined in the ruling delivered on 3rd October 2025.
orders:
a) The Defendants’ Preliminary Objection dated 16th January 2026 is hereby dismissed.
b) For avoidance of doubt, dismissal of the Preliminary Objection does not constitute a final determination that the Plaintiff’s claim was instituted within the legal structure.
c) The costs of the Preliminary Objection are awarded to the Plaintiff.
Orders accordingly.