1. The appellant herein had filed an ex- parte application before the magistrate court under the provisions of section 27 of Limitations of Actions Act Section 1A, 1B, and 3A of the Civil Procedure Act and Order 37, Rule 2 of the Civil Procedure rules, seeking leave to commence civil proceedings against the respondents. The proceedings sought to be commenced by the appellant, relate to tort of negligence arising from a motor vehicle accident that allegedly occurred on 4th April 2020 involving motor vehicle registration number KBT 503P TOYOTA LANDCRUISER in Wagadud Mandera County.
2. The application was supported by the affidavit of FATUMA ALIOW ISAAK sworn on 20th May 2024. She deposed that while in the said motor vehicle together with others, on the material date of the accident she sustained injuries and reported the matter to the insurance company who promised to compensate for the damage but however failed to do so leading to lapse of time within which to commence the action.
3. The trial court was apparently convinced by the applicant’s reason(s) for delay in filing suit in time and by a ruling dated 9th June 2024 allowed the application and granted the applicant leave to commence civil proceedings against the respondent.
4. Pursuant to the leave granted on 6th June 2024, the applicant immediately moved the court and filed the substantive suit on 8th June 2024 2 days later and served the respondents insurance company on 30th august 2024.
5. The 1st and 2nd defendant took out a preliminary objection dated 2nd October 2024 challenging the appellants (plaintiff) claim dated 8th June 2024 and sought to have the same struck out with cost for the reason that;
1. The plaint is misplaced, fatally and incurably defective and ought to be dismissed for want of compliance with the mandatory provisions of the Limitation of Actions Act.
2. The suit offends the express and unambiguous of section 4(2) of the Limitation of Action Act and the same is time barred thus incurably defective.
3. The plaintiff did not seek leave to file the suit out of time.
4. That the plaintiff suit is incompetent and as such the same ought to be dismissed.
6. The objection was opposed. The appellant filed replying affidavit dated 1st September 2024 bringing to the respondents and the court attention the fact that leave to file suit out of time been sought in miscellaneous application number E001 of 2024 and granted vide the courts ruling of 6th June 2024, and therefore it is not true as asserted by the respondent that leave had not been obtained.
7. The learned magistrate proceeded on the wrong premise that what was before her is an application for extension of time and for which a preliminary objection had been taken by the respondent. This is because throughout the ruling on the preliminary objection dated 8th October 2025, the court did not consider the import of her own decision dated 6th June 2024 granting the appellant leave to institute proceedings out of the time provided by the limitation of Action Act. The court proceeded as if it was determining an application for extension of time on merit.
8. In the analysis and determination, the court stated as follows;
“my careful perusal and consideration of the P.O application in the circumstances of this case therefore upon consideration of all above, is that, it is my finding that the application has merit as the plaintiffs claim Has been demonstrated to be fatally defective as it failed to meet the threshold to warrant extension of time as the claim offends section 4(2) of the Limitation of Actions Act (Cap 22) as well as section 27 (2) of the Limitation of Actions Act, noting further that the defendant failed to submit on the same”.
9. I have considered the parties submissions filed by the appellant and the respondent and the authorities supplied which I have found useful.
10. An application for leave to file a suit out of time is made under the provisions of sections 28 of the Limitation of Action Act. Section 28 of the Act provides as follows;
(1)An application for the leave of the court for the purposes of section 27 of this Act shall be made ex parte, except insofar as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action.(2)Where such an application is made before the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would in the absence of any evidence to the contrary, be sufficient—(a) to establish that cause of action, apart from any defence undersection 4 (2) of this Act; and(b)to fulfil the requirements of section 27(2) of this Act in relation to that cause of action.
11. The application for leave to commence a relevant action was made by the appellant in the court below and the same was granted by the trial magistrate on 6th June 2024 pursuant to which an action was subsequently filed. Once an action is filed pursuant to the leave granted, any challenge by the defendant or any party must be made in the action/suit itself and not by way of preliminary objection. Preliminary objection is suitable for a point of law that can be determined without the need for evidence. A preliminary point of law raised to challenge the trial court decision to grant the plaintiff/appellant leave to file a suit out of the statutory time permitted by law would invariably require the court to look at the affidavit evidence before the trial court and establish whether there was any reason(s) that justify the grant of leave. This will require the court to go beyond the pleadings and into the materials or evidence that supported the grant of leave application. It is not the objective of a preliminary objection to inquire into the merits or otherwise of the courts decisions with a view to disturb it at that stage.
12. In my view once the court for whatever reason grant a party leave to commence action and that action is subsequently commenced, the only recourse available to the defendant or any other aggrieved party is to plead limitation as a defence and contest the grant of such leave at the trial. In which case the burden is on the party contesting to demonstrate why leave should not have been granted in the first place. See the case of Lucy Wanjiku Gikuhi v Simon Gatheru Nderitu) [2024] KEHC 266 (KLR)
13. The magistrate therefore fell into an error venturing into the substance of the appellant claim instead of allowing the parties to ventilate their grievance at the trial of the main suit. Equally, the court had no jurisdiction to sit on appeal or review of her own decision. The only available recourse to the respondent in this matter was to appeal against the decision of the court or seek its review and not file a preliminary objection. A preliminary objection arises out of pleadings or by clear implications out of the pleadings such as a plea of limitation. See Mukisa Biscuit Manufacturing Company Limited vs West End Distributors (1969) EA 696 where the court stated;
… “A preliminary objection consists of point of law which has been pleaded or which arise by clear implication out of pleading, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to the jurisdiction of the court, plea of limitation or submission that parties are bound by the contract giving rise to the suit to refer the matter to arbitration.”
14. In the circumstances, the appeal herein succeeds and the order dismissing the appellant/plaintiff suit is set aside, the Suit is Hereby Reinstated and ordered to proceed to hearing on its merit before a magistrate differently constituted.
That each party shall bear its own cost of the appeal.
2. The application was supported by the affidavit of FATUMA ALIOW ISAAK sworn on 20th May 2024. She deposed that while in the said motor vehicle together with others, on the material date of the accident she sustained injuries and reported the matter to the insurance company who promised to compensate for the damage but however failed to do so leading to lapse of time within which to commence the action.
3. The trial court was apparently convinced by the applicant’s reason(s) for delay in filing suit in time and by a ruling dated 9th June 2024 allowed the application and granted the applicant leave to commence civil proceedings against the respondent.
4. Pursuant to the leave granted on 6th June 2024, the applicant immediately moved the court and filed the substantive suit on 8th June 2024 2 days later and served the respondents insurance company on 30th august 2024.
5. The 1st and 2nd defendant took out a preliminary objection dated 2nd October 2024 challenging the appellants (plaintiff) claim dated 8th June 2024 and sought to have the same struck out with cost for the reason that;
1. The plaint is misplaced, fatally and incurably defective and ought to be dismissed for want of compliance with the mandatory provisions of the Limitation of Actions Act.
2. The suit offends the express and unambiguous of section 4(2) of the Limitation of Action Act and the same is time barred thus incurably defective.
3. The plaintiff did not seek leave to file the suit out of time.
4. That the plaintiff suit is incompetent and as such the same ought to be dismissed.
6. The objection was opposed. The appellant filed replying affidavit dated 1st September 2024 bringing to the respondents and the court attention the fact that leave to file suit out of time been sought in miscellaneous application number E001 of 2024 and granted vide the courts ruling of 6th June 2024, and therefore it is not true as asserted by the respondent that leave had not been obtained.
7. The learned magistrate proceeded on the wrong premise that what was before her is an application for extension of time and for which a preliminary objection had been taken by the respondent. This is because throughout the ruling on the preliminary objection dated 8th October 2025, the court did not consider the import of her own decision dated 6th June 2024 granting the appellant leave to institute proceedings out of the time provided by the limitation of Action Act. The court proceeded as if it was determining an application for extension of time on merit.
8. In the analysis and determination, the court stated as follows;
“my careful perusal and consideration of the P.O application in the circumstances of this case therefore upon consideration of all above, is that, it is my finding that the application has merit as the plaintiffs claim Has been demonstrated to be fatally defective as it failed to meet the threshold to warrant extension of time as the claim offends section 4(2) of the Limitation of Actions Act (Cap 22) as well as section 27 (2) of the Limitation of Actions Act, noting further that the defendant failed to submit on the same”.
9. I have considered the parties submissions filed by the appellant and the respondent and the authorities supplied which I have found useful.
10. An application for leave to file a suit out of time is made under the provisions of sections 28 of the Limitation of Action Act. Section 28 of the Act provides as follows;
(1)An application for the leave of the court for the purposes of section 27 of this Act shall be made ex parte, except insofar as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action.(2)Where such an application is made before the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would in the absence of any evidence to the contrary, be sufficient—(a) to establish that cause of action, apart from any defence undersection 4 (2) of this Act; and(b)to fulfil the requirements of section 27(2) of this Act in relation to that cause of action.
11. The application for leave to commence a relevant action was made by the appellant in the court below and the same was granted by the trial magistrate on 6th June 2024 pursuant to which an action was subsequently filed. Once an action is filed pursuant to the leave granted, any challenge by the defendant or any party must be made in the action/suit itself and not by way of preliminary objection. Preliminary objection is suitable for a point of law that can be determined without the need for evidence. A preliminary point of law raised to challenge the trial court decision to grant the plaintiff/appellant leave to file a suit out of the statutory time permitted by law would invariably require the court to look at the affidavit evidence before the trial court and establish whether there was any reason(s) that justify the grant of leave. This will require the court to go beyond the pleadings and into the materials or evidence that supported the grant of leave application. It is not the objective of a preliminary objection to inquire into the merits or otherwise of the courts decisions with a view to disturb it at that stage.
12. In my view once the court for whatever reason grant a party leave to commence action and that action is subsequently commenced, the only recourse available to the defendant or any other aggrieved party is to plead limitation as a defence and contest the grant of such leave at the trial. In which case the burden is on the party contesting to demonstrate why leave should not have been granted in the first place. See the case of Lucy Wanjiku Gikuhi v Simon Gatheru Nderitu) [2024] KEHC 266 (KLR)
13. The magistrate therefore fell into an error venturing into the substance of the appellant claim instead of allowing the parties to ventilate their grievance at the trial of the main suit. Equally, the court had no jurisdiction to sit on appeal or review of her own decision. The only available recourse to the respondent in this matter was to appeal against the decision of the court or seek its review and not file a preliminary objection. A preliminary objection arises out of pleadings or by clear implications out of the pleadings such as a plea of limitation. See Mukisa Biscuit Manufacturing Company Limited vs West End Distributors (1969) EA 696 where the court stated;
… “A preliminary objection consists of point of law which has been pleaded or which arise by clear implication out of pleading, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to the jurisdiction of the court, plea of limitation or submission that parties are bound by the contract giving rise to the suit to refer the matter to arbitration.”
14. In the circumstances, the appeal herein succeeds and the order dismissing the appellant/plaintiff suit is set aside, the Suit is Hereby Reinstated and ordered to proceed to hearing on its merit before a magistrate differently constituted.
That each party shall bear its own cost of the appeal.