(Being an appeal from the Ruling and Order of Hon. G.W. Kirugumi - Principal Magistrate delivered on 26/10/2022 in Kerugoya Magistrates Court Civil Case No. 56 of 2021)
Background
1. The appellant, as plaintiff before the trial court, on 17th May 2021, filed a suit vide a plaint dated 13/5/2021 against the 1st appellant as the 1st defendant and the 2nd respondent as the 2nd defendant. The appellant claims that on 16/5/2018, the 2nd respondent, as agent of the 1st respondent, through negligence, caused damage to his building erected on land parcel number Inoi/Ndimi/3283 when a tree being felled fell on the roof of the appellant’s house. The building became uninhabitable as a result of the destruction, forcing the appellant to seek alternative accommodation at a cost. He holds the 1st respondent vicariously liable for the negligent acts of the 2nd respondent. His claim against the respondents is for the rebuilding and restoration of his said house and reimbursement of costs incurred in seeking alternative accommodation.
2. The 1st respondent entered appearance through a memorandum of appearance dated 8th June 2025 and filed a statement of defence of the same date and denied the appellant’s claim in toto. It also averred that it had been improperly sued and no reasonable cause of action had been raised against it and it would be seeking to have the suit struck out.
3. The 2nd respondent did not enter appearance within the time provided for under the law.
4. On 2nd September 2022, the 1st respondent filed a notice of preliminary objection dated 31st August 2022 on grounds that the plaint had been filed contrary to the provisions of section 4(2) of the Limitation of Actions Act (Cap. 22) Laws of Kenya and prayed that the suit be struck out as it was an abuse of the court process.
5. On 12th September 2022 the 1st respondent filed its bundle of documents consisting of a list of witnesses, witness statements, list of documents and bundle of documents.
6. The preliminary objection was heard on written submissions of the parties.
7. On 26th October 2022, the trial court delivered a ruling upholding the 1st respondent’s preliminary objection and thereby struck out the suit with no order for costs.
Grounds of appeal
8. The appellant was aggrieved by the ruling and now appeals to this court in a memorandum dated 21st November 2022 on the following grounds:
a. the learned trial magistrate erred in law and in fact by deciding that the suit was time barred.
b. the learned trial magistrate erred in law and in facts by failing to take account of substantive justice as opposed to procedural technicalities.
c. the learned trial magistrate erred in law and in fact in completely disregarding the evidence put forth by the appellant.
d. the learned trial magistrate erred in law and in fact by upholding the preliminary objection by the 1st respondent yet it was filed very late when the matter was coming up for hearing.
e. the learned trial magistrate erred in law and in fact by wrongly computing time when the cause of action arose and when the limitation of time was ending.
f. the learned trial magistrate erred in law and in fact by failing to fairly evaluate the evidence tendered by the parties.
9. The appellant therefore, prays that the appeal be allowed with costs and the ruling of the trial court be set aside and the suit to proceed for full hearing and determination on the merits.
Submissions
10. The appeal was disposed of by way of written submissions which were filed by both parties.
11. The submissions by both parties are considered more extensively in the analysis following.
Duty of appellate court
12. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 where it was held as follows:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Case before the trial court
13. The submissions before the trial court were more or less the same as before this court on appeal. I need not reproduce them here. In this appeal however, learned counsel for the appellant has cited the provisions of section 57 of the Interpretation and General Provisions Act (Cap. 2) Laws of Kenya which he did not cite before the trial court. This being a submission on a point of law, this court will have to consider it all the same.
14. Upon considering the submissions of parties, the learned trial magistrate found that the suit was instituted after the three-year limitation period had lapsed and consequently struck out the suit. She correctly found that Order 50 Rule 2 is not applicable to computation of time stipulated under statute such as the Limitation of Actions Act as was held by the Court of Appeal in the case of Maersk Kenya Limited v Murabu Chaka Tsuma [2017] KECA 204 (KLR). The learned trial magistrate in arriving at her decision was also guided by the Court of Appeal decision in Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR).
Analysis
15. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and reexamined the case before the trial court including the pleadings, the submissions by the parties and the ruling.
16. It is not disputed that the preliminary objection was on a pure point of law. I am guided by the holding of Kiage JA in the above case of Attorney General & another v Andrew Maina Githinji & another that:
“The Preliminary Objection that had been raised before the court below was a jurisdictional one. It raised a statutory bar to the bringing of the claim by the respondents herein outside of the three year cut-off imposed by Section 90 of the Employment Act. Such a plea, if upheld, would have been dispositive of the claim and therefore constituted “a pure point of law” in the language employed by Sir Charles Newbold P, in the oft-cited case of MUKISA BISCUIT MANUFACTURING CO. LTD –VS- WEST END DISTRIBUTORS LTD [1969] EA 696. It was therefore properly taken.”
17. The objection taken herein by the 1st respondent raised a statutory bar to the filing of the claim by the appellant outside the three-year limitation period provided for under section 4(2) of the Limitation of Actions Act.
18. It is not disputed that the alleged damage to the appellant’s house occurred on 16/5/2018. The appellant relying on section 57 of the Interpretation and General Provisions Act (Cap. 2) Laws of Kenya submits that the time for filing the claim started to run on 17th May 2018 since under the said section the day on which the damage event happened is excluded in the computation of time. Learned counsel has gone into calculating the number of days in each year for all the years from 16th May 2018 to 17th May 2021, pointing out which year had 365 days and which one had 366 days and arriving at the conclusion that by filing the suit on 17th May 2021, it was within those number of days and therefore within the three-year limitation period.
19. I do not think it was necessary to go into all that. I will explain the reason shortly.
20. Learned counsel has submitted further that even if the day the event occurred is included in the calculations of the three-year period, the limitation period would end on 16th May 2021 which fell on a Sunday and therefore on an excluded day. The latest day for the suit to have been filed was therefore 17th May 2021 which was within the limitation period.
21. He has also calculated the days using the provisions of Order 50 Rules 2 and 3 of the Civil Procedure Rules. However, reliance on the CPR in computing the period of limitation prescribed by statute other than the Civil Procedure Act (Cap. 21) Laws of Kenya was declined by the Court of Appeal as we have seen in the case of Maersk Kenya Limited v Murabu Chaka Tsuma [2017] KECA 204 (KLR) above.
22. Learned counsel for the 1st respondent on his part submits that the three-year period within which the appellant should have instituted the suit lapsed on 15th May 2021. But the appellant filed the suit on 17th May 2021 which according to learned counsel was well out of the limitation period. In those circumstances, learned counsel submits that the suit is statute barred and a non-starter. For the same reasons, the trial court had no jurisdiction to embark or hearing the suit.
23. Learned counsel for the appellant in a rejoinder to that submission, submits that even assuming that the last day of filing the suit was 15th May 2021 as submitted by the 1st respondent, the same fell on a Saturday which is an excluded day under sections 57(b) and (c) of the Interpretation and General Provisions Act. Section 57 of the IGP Act provides for computation of time as follows:
“In computing time for the purposes of a written law, unless the contrary intention appears—
(a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;
(c) where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;
(d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.”
24. Learned counsel for the 1st respondent did not make any submissions on these provisions of the law.
25. Both parties are agreed on one point however, that the latest day on which the pleadings should have been filed was 15th May 2021. It is also apparent from the record that the suit was filed on 17th May 2021. This date 15th May 2021 fell on a Saturday which is an excluded day under section 57(b) and (c) of the IGP Act. Therefore, the latest day the suit ought to have been filed became Monday 17th May 2023 and indeed it was filed on that date.
26. In the case of Attorney General & another v Andrew Maina Githinji & another (supra), the Court of Appeal, Kiage, J. considering a similar point stated simply thus:
“ … the respondents were dismissed from employment on 2nd February 2010. The three year period within which they could lawfully challenge their dismissal expired on or about 1st February 2013.”
27. In that case, there was no arithmetic computation of how many days were contained in a year to make it a year or not as learned counsel for the appellant has taken us through in this case. The Court simply considered the date in the month the cause of action arose and the preceding date in that same month in the year the limitation period expired. Perhaps the only thing that would have us go a little further in this case is that herein the suit was not filed so long after the last date of the limitation period as in the case cited. It was filed on a date one day, 17th May 2021 after the date of the same month 16th May 2018 when the cause of action arose.
28. A casual look at the dates would make one believe that the suit was filed two days after the due date. However, when one takes into account what the IGP Act stipulates under section 57 (b) and (c) on computation of days then one has to go back and consider what are termed as excluded days and whether the last date of filing the cause of action fell on an excluded day. Excluded days do not make the limitation period longer by a single day. They only take cognizance of the fact that on such days, public offices are not open and so one is not able to conduct the requisite activity of filing suit until the next day when the offices would be open.
29. Consequently, I find that the learned trial magistrate erred in not considering these provisions of the law and thereby arrived at an erroneous decision.
30. I am satisfied that the appeal has merit and the same is allowed. The trial court’s decision allowing the preliminary objection is set aside and substituted with an order dismissing the preliminary objection.
31. The appellant shall get the costs of the appeal and of the preliminary objection in the lower court.
32. The case will be mentioned before the Head of Station Kerugoya Magistrates Courts or the duty court on for directions on 17th September 2025 for allocation to a court for further proceedings.
33. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Teams this 13th day of August 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Kipruto holding brief for Tess Kimotho for the appellant.
Abobo (Ms) for the 1st Respondent.
N/A for the 2nd Respondent.
Job: Court Assistant.
Background
1. The appellant, as plaintiff before the trial court, on 17th May 2021, filed a suit vide a plaint dated 13/5/2021 against the 1st appellant as the 1st defendant and the 2nd respondent as the 2nd defendant. The appellant claims that on 16/5/2018, the 2nd respondent, as agent of the 1st respondent, through negligence, caused damage to his building erected on land parcel number Inoi/Ndimi/3283 when a tree being felled fell on the roof of the appellant’s house. The building became uninhabitable as a result of the destruction, forcing the appellant to seek alternative accommodation at a cost. He holds the 1st respondent vicariously liable for the negligent acts of the 2nd respondent. His claim against the respondents is for the rebuilding and restoration of his said house and reimbursement of costs incurred in seeking alternative accommodation.
2. The 1st respondent entered appearance through a memorandum of appearance dated 8th June 2025 and filed a statement of defence of the same date and denied the appellant’s claim in toto. It also averred that it had been improperly sued and no reasonable cause of action had been raised against it and it would be seeking to have the suit struck out.
3. The 2nd respondent did not enter appearance within the time provided for under the law.
4. On 2nd September 2022, the 1st respondent filed a notice of preliminary objection dated 31st August 2022 on grounds that the plaint had been filed contrary to the provisions of section 4(2) of the Limitation of Actions Act (Cap. 22) Laws of Kenya and prayed that the suit be struck out as it was an abuse of the court process.
5. On 12th September 2022 the 1st respondent filed its bundle of documents consisting of a list of witnesses, witness statements, list of documents and bundle of documents.
6. The preliminary objection was heard on written submissions of the parties.
7. On 26th October 2022, the trial court delivered a ruling upholding the 1st respondent’s preliminary objection and thereby struck out the suit with no order for costs.
Grounds of appeal
8. The appellant was aggrieved by the ruling and now appeals to this court in a memorandum dated 21st November 2022 on the following grounds:
a. the learned trial magistrate erred in law and in fact by deciding that the suit was time barred.
b. the learned trial magistrate erred in law and in facts by failing to take account of substantive justice as opposed to procedural technicalities.
c. the learned trial magistrate erred in law and in fact in completely disregarding the evidence put forth by the appellant.
d. the learned trial magistrate erred in law and in fact by upholding the preliminary objection by the 1st respondent yet it was filed very late when the matter was coming up for hearing.
e. the learned trial magistrate erred in law and in fact by wrongly computing time when the cause of action arose and when the limitation of time was ending.
f. the learned trial magistrate erred in law and in fact by failing to fairly evaluate the evidence tendered by the parties.
9. The appellant therefore, prays that the appeal be allowed with costs and the ruling of the trial court be set aside and the suit to proceed for full hearing and determination on the merits.
Submissions
10. The appeal was disposed of by way of written submissions which were filed by both parties.
11. The submissions by both parties are considered more extensively in the analysis following.
Duty of appellate court
12. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 where it was held as follows:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Case before the trial court
13. The submissions before the trial court were more or less the same as before this court on appeal. I need not reproduce them here. In this appeal however, learned counsel for the appellant has cited the provisions of section 57 of the Interpretation and General Provisions Act (Cap. 2) Laws of Kenya which he did not cite before the trial court. This being a submission on a point of law, this court will have to consider it all the same.
14. Upon considering the submissions of parties, the learned trial magistrate found that the suit was instituted after the three-year limitation period had lapsed and consequently struck out the suit. She correctly found that Order 50 Rule 2 is not applicable to computation of time stipulated under statute such as the Limitation of Actions Act as was held by the Court of Appeal in the case of Maersk Kenya Limited v Murabu Chaka Tsuma [2017] KECA 204 (KLR). The learned trial magistrate in arriving at her decision was also guided by the Court of Appeal decision in Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR).
Analysis
15. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and reexamined the case before the trial court including the pleadings, the submissions by the parties and the ruling.
16. It is not disputed that the preliminary objection was on a pure point of law. I am guided by the holding of Kiage JA in the above case of Attorney General & another v Andrew Maina Githinji & another that:
“The Preliminary Objection that had been raised before the court below was a jurisdictional one. It raised a statutory bar to the bringing of the claim by the respondents herein outside of the three year cut-off imposed by Section 90 of the Employment Act. Such a plea, if upheld, would have been dispositive of the claim and therefore constituted “a pure point of law” in the language employed by Sir Charles Newbold P, in the oft-cited case of MUKISA BISCUIT MANUFACTURING CO. LTD –VS- WEST END DISTRIBUTORS LTD [1969] EA 696. It was therefore properly taken.”
17. The objection taken herein by the 1st respondent raised a statutory bar to the filing of the claim by the appellant outside the three-year limitation period provided for under section 4(2) of the Limitation of Actions Act.
18. It is not disputed that the alleged damage to the appellant’s house occurred on 16/5/2018. The appellant relying on section 57 of the Interpretation and General Provisions Act (Cap. 2) Laws of Kenya submits that the time for filing the claim started to run on 17th May 2018 since under the said section the day on which the damage event happened is excluded in the computation of time. Learned counsel has gone into calculating the number of days in each year for all the years from 16th May 2018 to 17th May 2021, pointing out which year had 365 days and which one had 366 days and arriving at the conclusion that by filing the suit on 17th May 2021, it was within those number of days and therefore within the three-year limitation period.
19. I do not think it was necessary to go into all that. I will explain the reason shortly.
20. Learned counsel has submitted further that even if the day the event occurred is included in the calculations of the three-year period, the limitation period would end on 16th May 2021 which fell on a Sunday and therefore on an excluded day. The latest day for the suit to have been filed was therefore 17th May 2021 which was within the limitation period.
21. He has also calculated the days using the provisions of Order 50 Rules 2 and 3 of the Civil Procedure Rules. However, reliance on the CPR in computing the period of limitation prescribed by statute other than the Civil Procedure Act (Cap. 21) Laws of Kenya was declined by the Court of Appeal as we have seen in the case of Maersk Kenya Limited v Murabu Chaka Tsuma [2017] KECA 204 (KLR) above.
22. Learned counsel for the 1st respondent on his part submits that the three-year period within which the appellant should have instituted the suit lapsed on 15th May 2021. But the appellant filed the suit on 17th May 2021 which according to learned counsel was well out of the limitation period. In those circumstances, learned counsel submits that the suit is statute barred and a non-starter. For the same reasons, the trial court had no jurisdiction to embark or hearing the suit.
23. Learned counsel for the appellant in a rejoinder to that submission, submits that even assuming that the last day of filing the suit was 15th May 2021 as submitted by the 1st respondent, the same fell on a Saturday which is an excluded day under sections 57(b) and (c) of the Interpretation and General Provisions Act. Section 57 of the IGP Act provides for computation of time as follows:
“In computing time for the purposes of a written law, unless the contrary intention appears—
(a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;
(c) where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;
(d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.”
24. Learned counsel for the 1st respondent did not make any submissions on these provisions of the law.
25. Both parties are agreed on one point however, that the latest day on which the pleadings should have been filed was 15th May 2021. It is also apparent from the record that the suit was filed on 17th May 2021. This date 15th May 2021 fell on a Saturday which is an excluded day under section 57(b) and (c) of the IGP Act. Therefore, the latest day the suit ought to have been filed became Monday 17th May 2023 and indeed it was filed on that date.
26. In the case of Attorney General & another v Andrew Maina Githinji & another (supra), the Court of Appeal, Kiage, J. considering a similar point stated simply thus:
“ … the respondents were dismissed from employment on 2nd February 2010. The three year period within which they could lawfully challenge their dismissal expired on or about 1st February 2013.”
27. In that case, there was no arithmetic computation of how many days were contained in a year to make it a year or not as learned counsel for the appellant has taken us through in this case. The Court simply considered the date in the month the cause of action arose and the preceding date in that same month in the year the limitation period expired. Perhaps the only thing that would have us go a little further in this case is that herein the suit was not filed so long after the last date of the limitation period as in the case cited. It was filed on a date one day, 17th May 2021 after the date of the same month 16th May 2018 when the cause of action arose.
28. A casual look at the dates would make one believe that the suit was filed two days after the due date. However, when one takes into account what the IGP Act stipulates under section 57 (b) and (c) on computation of days then one has to go back and consider what are termed as excluded days and whether the last date of filing the cause of action fell on an excluded day. Excluded days do not make the limitation period longer by a single day. They only take cognizance of the fact that on such days, public offices are not open and so one is not able to conduct the requisite activity of filing suit until the next day when the offices would be open.
29. Consequently, I find that the learned trial magistrate erred in not considering these provisions of the law and thereby arrived at an erroneous decision.
30. I am satisfied that the appeal has merit and the same is allowed. The trial court’s decision allowing the preliminary objection is set aside and substituted with an order dismissing the preliminary objection.
31. The appellant shall get the costs of the appeal and of the preliminary objection in the lower court.
32. The case will be mentioned before the Head of Station Kerugoya Magistrates Courts or the duty court on for directions on 17th September 2025 for allocation to a court for further proceedings.
33. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Teams this 13th day of August 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Kipruto holding brief for Tess Kimotho for the appellant.
Abobo (Ms) for the 1st Respondent.
N/A for the 2nd Respondent.
Job: Court Assistant.