REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL CASE NO. E007 OF 2025
ENOCHEM AGROVET LIMITED ……...................... PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF KISII ……................. DEFENDANT
Introduction
1. Before this Court for determination is the Defendant’s Notice of Motion dated 23rd July 2025, brought pursuant to Order 2 Rule 15(1) of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(f) of the Civil Procedure Act, Cap 21 Laws of Kenya, and all other enabling provisions of the law.
2. The Defendant seeks the following substantive orders:
a. (Spent)
b. That pending the hearing and determination of this application, this Honourable Court be pleased to stay all proceedings herein.
c. That this Honourable Court be pleased to strike out the Plaintiff’s suit for being time-barred and otherwise an abuse of the process of the Court.
d. In the alternative to prayer (c), that this Honourable Court be pleased to hear and determine the Preliminary Objection dated 23rd July 2025, wherein the Defendant contends that the Plaintiff’s suit is statute-barred under Section 3(2) of the Public Authorities Limitation Act, Cap 39 Laws of Kenya, and be struck out with costs.
3. The application is supported by an affidavit sworn by Alfred Nyandieka, the County Attorney of Kisii County, and is premised on the grounds that:
o The Plaintiff filed the present suit on 18th May 2025 together with a Notice of Motion under certificate of urgency.
o Upon perusal, this Court issued directions on 1st July 2025, including referral of the matter to mediation.
o While preparing defence pleadings, the Defendant discovered that the suit is statute-barred.
o A time-barred suit divests the Court of jurisdiction.
o Unless proceedings are stayed, judicial time will be wasted on a suit incapable of determination on merits.
o The suit is frivolous, unarguable, and an abuse of the court process.
o It is in the interests of justice and the overriding objective that the suit be struck out at the earliest opportunity.
4. Contemporaneously with the application, the Defendant filed a Notice of Preliminary Objection dated 28th July 2025, contending that the suit is statute-barred pursuant to Section 3(2) of the Public Authorities Limitation Act.
________________________________________
Plaintiff’s Submissions
A. Whether the Preliminary Objection is Defective
5. The Plaintiff submitted that the Preliminary Objection is fatally defective on the basis that it is supported by an affidavit sworn by the Defendant’s Advocate, who deponed to contested matters of fact not within personal knowledge.
6. It was argued that no explanation was tendered as to why the Defendant did not swear the affidavit itself, rendering the affidavit irregular and liable to be struck out.
7. The Plaintiff relied on, inter alia:
o Magnolia Pvt Limited v Synermed Pharmaceuticals (K) Ltd [2018] eKLR;
o International Community of Women v NGO Coordination Board & Another;
o DJC v BKL [2022] KEHC 10189 (KLR); and
o Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another [2014] eKLR,
for the proposition that a Preliminary Objection must be founded purely on points of law and not supported by affidavits.
8. Further reliance was placed on the celebrated decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
B. Whether the Plaintiff’s Claim is Time-Barred
9. The Plaintiff submitted that the claim is not statute-barred, contending that:
o There were continuous engagements between the parties, including negotiations, demand letters, and submission of the claim to the Defendant’s Pending Bills Committee pursuant to a Gazette Notice dated 5th July 2024.
o The Defendant made a part payment, which constituted an acknowledgment of liability and reset the limitation period.
o The Defendant should not be permitted to benefit from its own breach.
Issues for Determination
10. Having considered the pleadings, submissions, and authorities cited, the Court finds that the following issues arise for determination:
a. Whether the Preliminary Objection is defective;
b. Whether the Plaintiff’s suit is statute-barred under the Public Authorities Limitation Act.
Analysis and Determination
A. Whether the Preliminary Objection is Defective
11. The law regarding Preliminary Objections was firmly settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra), where Law JA stated that a Preliminary Objection consists of a pure point of law, which if argued successfully, may dispose of the suit.
12. It is also settled that advocates should not swear affidavits on contested matters of fact. In Regina Waithira Mwangi Gitau v Boniface Nthenge [2015] eKLR, the Court cautioned against advocates deponing to disputed factual matters as it risks converting counsel into witnesses.
13. However, courts have equally recognized that advocates may depone to formal, procedural, or uncontested matters, particularly where the affidavit relates to issues of law or case management.
14. In the present case, the affidavit complained of merely addresses procedural matters relating to the filing of the suit, directions issued by the Court, and the need to prioritize the determination of the Preliminary Objection. These are not contested factual matters requiring evidentiary proof.
15. The Preliminary Objection itself raises a pure point of law, namely limitation of actions, which can be determined without recourse to contested evidence.
16. The Court therefore finds that the Preliminary Objection is not defective and is properly before the Court.
B. Whether the Plaintiff’s Claim is Time-Barred
17. Section 3(2) of the Public Authorities Limitation Act, Cap 39 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.”
18. It is not disputed that the Defendant is a County Government and therefore a public authority within the meaning of the Act. It is also not disputed that the Plaintiff’s claim is founded on contract.
19. The Court of Appeal in Attorney General & Another v Andrew Maina Githinji & Another [2016] eKLR, citing Letang v Cooper [1964] 2 All ER 929, defined a cause of action as:
“A factual situation the existence of which entitles one person to obtain from the court a remedy against another.”
20. The Plaintiff pleaded that the Defendant made a part payment of Kshs. 7,500,000/= in April 2022, which the Defendant did not controvert by filing a defence.
21. It is settled law that a part payment constitutes an acknowledgment of debt and has the effect of restarting the limitation period. Accordingly, time began to run afresh in April 2022 and lapsed in April 2025.
22. The suit herein was filed in May 2025, approximately one month after the statutory limitation period had expired.
23. While the Court sympathizes with the Plaintiff’s predicament, limitation statutes are couched in mandatory terms and deprive the Court of jurisdiction once time has lapsed. As has been consistently held, equity cannot override an express statutory provision.
24. The Court therefore finds that the Plaintiff’s suit is statute-barred and the Court lacks jurisdiction to entertain it.
Disposition
25. In the premises, the Court finds that the Preliminary Objection dated 23rd July 2025 is meritorious.
26. Consequently, the Plaintiff’s suit is hereby struck out for being time-barred under Section 3(2) of the Public Authorities Limitation Act, Cap 39 Laws of Kenya.
27. Costs of the suit are awarded to the Defendant.
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS
AT KISII THIS 16TH DAY OF JANUARY 2026 IN THE PRESENCE OF:
Court Assistant – Kipcihchir
Parties – Absent
IN THE HIGH COURT OF KENYA AT KISII
CIVIL CASE NO. E007 OF 2025
ENOCHEM AGROVET LIMITED ……...................... PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF KISII ……................. DEFENDANT
Introduction
1. Before this Court for determination is the Defendant’s Notice of Motion dated 23rd July 2025, brought pursuant to Order 2 Rule 15(1) of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(f) of the Civil Procedure Act, Cap 21 Laws of Kenya, and all other enabling provisions of the law.
2. The Defendant seeks the following substantive orders:
a. (Spent)
b. That pending the hearing and determination of this application, this Honourable Court be pleased to stay all proceedings herein.
c. That this Honourable Court be pleased to strike out the Plaintiff’s suit for being time-barred and otherwise an abuse of the process of the Court.
d. In the alternative to prayer (c), that this Honourable Court be pleased to hear and determine the Preliminary Objection dated 23rd July 2025, wherein the Defendant contends that the Plaintiff’s suit is statute-barred under Section 3(2) of the Public Authorities Limitation Act, Cap 39 Laws of Kenya, and be struck out with costs.
3. The application is supported by an affidavit sworn by Alfred Nyandieka, the County Attorney of Kisii County, and is premised on the grounds that:
o The Plaintiff filed the present suit on 18th May 2025 together with a Notice of Motion under certificate of urgency.
o Upon perusal, this Court issued directions on 1st July 2025, including referral of the matter to mediation.
o While preparing defence pleadings, the Defendant discovered that the suit is statute-barred.
o A time-barred suit divests the Court of jurisdiction.
o Unless proceedings are stayed, judicial time will be wasted on a suit incapable of determination on merits.
o The suit is frivolous, unarguable, and an abuse of the court process.
o It is in the interests of justice and the overriding objective that the suit be struck out at the earliest opportunity.
4. Contemporaneously with the application, the Defendant filed a Notice of Preliminary Objection dated 28th July 2025, contending that the suit is statute-barred pursuant to Section 3(2) of the Public Authorities Limitation Act.
________________________________________
Plaintiff’s Submissions
A. Whether the Preliminary Objection is Defective
5. The Plaintiff submitted that the Preliminary Objection is fatally defective on the basis that it is supported by an affidavit sworn by the Defendant’s Advocate, who deponed to contested matters of fact not within personal knowledge.
6. It was argued that no explanation was tendered as to why the Defendant did not swear the affidavit itself, rendering the affidavit irregular and liable to be struck out.
7. The Plaintiff relied on, inter alia:
o Magnolia Pvt Limited v Synermed Pharmaceuticals (K) Ltd [2018] eKLR;
o International Community of Women v NGO Coordination Board & Another;
o DJC v BKL [2022] KEHC 10189 (KLR); and
o Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another [2014] eKLR,
for the proposition that a Preliminary Objection must be founded purely on points of law and not supported by affidavits.
8. Further reliance was placed on the celebrated decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
B. Whether the Plaintiff’s Claim is Time-Barred
9. The Plaintiff submitted that the claim is not statute-barred, contending that:
o There were continuous engagements between the parties, including negotiations, demand letters, and submission of the claim to the Defendant’s Pending Bills Committee pursuant to a Gazette Notice dated 5th July 2024.
o The Defendant made a part payment, which constituted an acknowledgment of liability and reset the limitation period.
o The Defendant should not be permitted to benefit from its own breach.
Issues for Determination
10. Having considered the pleadings, submissions, and authorities cited, the Court finds that the following issues arise for determination:
a. Whether the Preliminary Objection is defective;
b. Whether the Plaintiff’s suit is statute-barred under the Public Authorities Limitation Act.
Analysis and Determination
A. Whether the Preliminary Objection is Defective
11. The law regarding Preliminary Objections was firmly settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra), where Law JA stated that a Preliminary Objection consists of a pure point of law, which if argued successfully, may dispose of the suit.
12. It is also settled that advocates should not swear affidavits on contested matters of fact. In Regina Waithira Mwangi Gitau v Boniface Nthenge [2015] eKLR, the Court cautioned against advocates deponing to disputed factual matters as it risks converting counsel into witnesses.
13. However, courts have equally recognized that advocates may depone to formal, procedural, or uncontested matters, particularly where the affidavit relates to issues of law or case management.
14. In the present case, the affidavit complained of merely addresses procedural matters relating to the filing of the suit, directions issued by the Court, and the need to prioritize the determination of the Preliminary Objection. These are not contested factual matters requiring evidentiary proof.
15. The Preliminary Objection itself raises a pure point of law, namely limitation of actions, which can be determined without recourse to contested evidence.
16. The Court therefore finds that the Preliminary Objection is not defective and is properly before the Court.
B. Whether the Plaintiff’s Claim is Time-Barred
17. Section 3(2) of the Public Authorities Limitation Act, Cap 39 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.”
18. It is not disputed that the Defendant is a County Government and therefore a public authority within the meaning of the Act. It is also not disputed that the Plaintiff’s claim is founded on contract.
19. The Court of Appeal in Attorney General & Another v Andrew Maina Githinji & Another [2016] eKLR, citing Letang v Cooper [1964] 2 All ER 929, defined a cause of action as:
“A factual situation the existence of which entitles one person to obtain from the court a remedy against another.”
20. The Plaintiff pleaded that the Defendant made a part payment of Kshs. 7,500,000/= in April 2022, which the Defendant did not controvert by filing a defence.
21. It is settled law that a part payment constitutes an acknowledgment of debt and has the effect of restarting the limitation period. Accordingly, time began to run afresh in April 2022 and lapsed in April 2025.
22. The suit herein was filed in May 2025, approximately one month after the statutory limitation period had expired.
23. While the Court sympathizes with the Plaintiff’s predicament, limitation statutes are couched in mandatory terms and deprive the Court of jurisdiction once time has lapsed. As has been consistently held, equity cannot override an express statutory provision.
24. The Court therefore finds that the Plaintiff’s suit is statute-barred and the Court lacks jurisdiction to entertain it.
Disposition
25. In the premises, the Court finds that the Preliminary Objection dated 23rd July 2025 is meritorious.
26. Consequently, the Plaintiff’s suit is hereby struck out for being time-barred under Section 3(2) of the Public Authorities Limitation Act, Cap 39 Laws of Kenya.
27. Costs of the suit are awarded to the Defendant.
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS
AT KISII THIS 16TH DAY OF JANUARY 2026 IN THE PRESENCE OF:
Court Assistant – Kipcihchir
Parties – Absent