JUDGMENT
A. Background
1. This appeal arises from the ruling of Hon. J.W. Nasimiyu delivered on 11th August, 2025 in Milimani Small Claims Court Case No. SCCC/E4129/2025. The court “suo moto” had raised the legal issue of limitation of time and it had asked the parties to address it on the same.
2. The claim was founded on material damage arising from a cause of action that had occurred on 29th June 2022. The suit was filed by the appellants on 30th June 2025. Upon the court deliberations over the written submission of the respective parties, it held that the limitation period expired on 28th June 2025 and decline to apply Order 50 rule 3 of the Civil procedure Rules and Sections 57(b) and (c) of the Interpretation and General Provisions Act. Consequently the appellant’s claim was struck out as time-barred under section 4(2) of the Limitation of Actions Act.
3. The instant appeal was canvassed by written submissions. I have considered the appellant’s submissions dated 17th December 2025. The respondent’s filed similar submissions as filed at the lower court dated 20th July 2025.
4. The appellant impugns the decision of the trial court on grounds that it erred in law and in fact by failing to properly apply the statutory rules on computation of time, with the result that a suit filed on the next open court day was wrongly treated as having been filed out of time.
5. The issue for determination is therefore :
a) Whether a suit filed on the next working day after the expiry of the statutory limitation period, where the last day fell on a weekend, is time‑barred under Section 4 of the Limitation of Actions Act.
6. The appellant’s case is not that time should be extended as a matter of discretion. His contention is that the suit was filed within time once the law on computation is applied correctly. That distinction is fundamental. A party who seeks enlargement of time after expiry of a limitation period invokes a discretion which the statute may or may not confer. A party who says the deadline itself rolled over to the next working day does not ask for discretion at all. He simply contends that, on proper computation, the period had not expired when the suit was filed.
7. Section 4(2) of the Limitation of Actions Act provides:
2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of twelve months from such date.
8. Section 4 of the Limitation of Actions Act prescribes the substantive limitation period for actions founded on contract or tort. The provision is couched in mandatory terms, and courts have consistently held that limitation goes to jurisdiction.
9. The original case that informed this appeal lies on the three-year limitation period for actions founded on tort, including claims for material damage. Part III of the Limitation of Actions Act contains specific provisions on extension of time in limited circumstances, most notably in personal injury claims and cases involving disability, fraud, mistake, or ignorance of material facts. The Act is therefore restrictive where extension is concerned, and courts must be slow to imply powers of enlargement that Parliament has not conferred.
10. However, the present appeal is not about enlargement of time under Part III. It is about the general method of computing time. For that purpose, Section 57 of the Interpretation and General Provisions Act is of central importance.
Section 57: 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.
11. Order 50 rule 3 of the Civil Procedure Rules restates the same principle in civil practice.
‘Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof, such act or proceeding cannot be done, or taken on that day, such act or proceeding shall so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open’.
12. While the Civil Procedure Rules cannot override a substantive statute, they do reflect the long established rule that a party is not to be penalized for failing to act on a day when the registry is officially closed.
13. It is common ground that the cause of action accrued on 29th June 2022 and that the suit was filed on 30th June 2025. The trial court treated 28th June 2025 as the final day of the three-year period. This fell on a Saturday. The appellant contends that the correct approach, excluding the date of accrual, would have been 29th June 2025 as the final day. Which would have been a Sunday. On either view, the crucial point is that the terminal day fell on a weekend when the registry was closed.
14. Once that fact is accepted, section 57(b) and (c) of the Interpretation and General Provisions Act comes into play. The trial court appears to have conflated two separate concepts. The first is extension of limitation, which is a substantive relief provided only where the parent statute permits it. The second is computation of time, which is a neutral and general question of how one determines whether the prescribed period has expired.
15. The distinction matters because a statute may bar extension of time while still remaining subject to ordinary rules of computation. Where a statute says a claim must be brought within three years, the court cannot rewrite that period.
16. However, where the last day falls on a day when the registry is not open, the question is not whether the court is enlarging time. The question is whether, by operation of the computation rules, the final day shifted to the next open day.
17. The Appellant relied on Abdirahman Abdi v Safi Petroleum Ltd & 6 Others eKLR, where the court emphasized that rules of procedure and computation of time should be interpreted in a manner that facilitates substantive justice rather than obstructing it on technical grounds.
18. In Mae Properties Ltd v Joseph Kibe Another eKLR, the court treated statutory timelines purposively and declined to adopt an interpretation that would produce an unjust or impractical result.
19. The respondent on the other hand relied on Bosire Ogero v Royal Media Services Ltd eKLR, Mary Ojundwa v Nzoia Sugar Co Ltd eKLR, and Ngure v Kingara & another KEHC 6869. These authorities stand for the proposition that courts lack an equitable discretion to extend time for claims that are statutorily barred, particularly where the Limitation of Actions Act does not permit enlargement. They are undoubtedly correct on that principle.
20. The trial court on the other hand relied on Maersk Kenya Limited v Murabu Chaka Tsuma eKLR. That decision concerned Order 50 rule 4 of the Civil Procedure Rules, which deals with the “Christmas vacation” and excludes a fixed period from computation of time for certain procedural acts. The Court of Appeal held that the rule could not be used to enlarge the six-year limitation period under section 4(1) (a) of the Limitation of Actions Act.
21. In my view, Order 50 rule 4 does not simply move a deadline that falls on a non-working day. It excludes an additional block of time from the computation altogether, thereby lengthening the period in a way that would directly alter the statutory limitation period.
22. Unlike Order 50 Rule 4, which excludes the Christmas recess and thereby enlarges limitation periods, Order 50 Rule 3 does not add time at all. The provision operates as a rule of computation. Where the final day prescribed for performance falls on a day when the registry is closed, the law deems performance on the next open day to be timely. Likewise, section 57(b) and (c) of the Interpretation and General Provisions Act do not enlarge the limitation period; they define what counts as timely performance when the last day lands on a non-working day. This ensures that parties are not prejudiced by circumstances beyond their control, while preserving the strictness of limitation statutes.
23. That approach is consistent with both principle and practicality. A litigant cannot be expected to file in a registry that is closed as a matter of law or administrative fact. If the law required filing on the closed day itself, it would create an artificial trap and defeat access to justice for no substantive reason. The consequence is that the act is deemed duly done if performed on the next day the office is open. The filing on Monday, 30th June 2025, was therefore within time.
24. That distinction is decisive. Authorities dealing with extension after expiry cannot be used to exclude the general statutory rules on computation unless they expressly address that point. The present appeal concerns a rule that determines when the period expires in the first place.
25. I am persuaded that this is the correct and orthodox reading of the law. It avoids the artificial result that a claimant loses a right merely because the last day of the prescribed period fell on a closed day. Nothing in the Limitation of Actions Act evinces a contrary intention sufficient to displace the general rule on computation of time. Silence on computation is not the same as exclusion of the general statute.
26. This interpretation is also consistent with Article 159(2) (d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities. That provision does not override limitation statutes or create time where none exists. But where the statutory text supports a purposive reading that avoids injustice and accords with ordinary computation principles, Article 159(2) (d) reinforces that approach.
27. No prejudice was shown by the respondent arising from the filing on the Monday rather than the preceding weekend. The registry was closed to both parties on the intervening days. The law should not visit fatal consequences on a litigant who acted on the next day the court was open.
28. In Nicholas Kiptoo Arap Salat v IEBC & 7 Others eKLR, the Supreme Court underscored that time limits are not mere technicalities, but it also recognized that the law on computation of time must be applied according to the governing rules. The decision is important not because it permits disregard of deadlines, but because it affirms that deadlines are to be computed lawfully and not mechanically in a manner that defeats the text.
29. For the foregoing reasons, I find that the learned trial magistrate erred in law in failing to apply section 57(b) and (c) of the Interpretation and General Provisions Act, as read together with Order 50 rule 3 of the Civil Procedure Rules, to the computation of the limitation period under section 4(2) of the Limitation of Actions Act. The appellant’s suit was filed within time.
30. Accordingly, I make the following orders:
1. The appeal is allowed.
2. The ruling of the Milimani Small Claims Court delivered on 11th August 2025 in SCCC/E4120/2025 is set aside.
3. The appellant’s claim is reinstated for hearing and determination on the merits before a different adjudicator.
4. Each party shall bear their costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY2026.
M. S. SHARIIF
JUDGE
A. Background
1. This appeal arises from the ruling of Hon. J.W. Nasimiyu delivered on 11th August, 2025 in Milimani Small Claims Court Case No. SCCC/E4129/2025. The court “suo moto” had raised the legal issue of limitation of time and it had asked the parties to address it on the same.
2. The claim was founded on material damage arising from a cause of action that had occurred on 29th June 2022. The suit was filed by the appellants on 30th June 2025. Upon the court deliberations over the written submission of the respective parties, it held that the limitation period expired on 28th June 2025 and decline to apply Order 50 rule 3 of the Civil procedure Rules and Sections 57(b) and (c) of the Interpretation and General Provisions Act. Consequently the appellant’s claim was struck out as time-barred under section 4(2) of the Limitation of Actions Act.
3. The instant appeal was canvassed by written submissions. I have considered the appellant’s submissions dated 17th December 2025. The respondent’s filed similar submissions as filed at the lower court dated 20th July 2025.
4. The appellant impugns the decision of the trial court on grounds that it erred in law and in fact by failing to properly apply the statutory rules on computation of time, with the result that a suit filed on the next open court day was wrongly treated as having been filed out of time.
5. The issue for determination is therefore :
a) Whether a suit filed on the next working day after the expiry of the statutory limitation period, where the last day fell on a weekend, is time‑barred under Section 4 of the Limitation of Actions Act.
6. The appellant’s case is not that time should be extended as a matter of discretion. His contention is that the suit was filed within time once the law on computation is applied correctly. That distinction is fundamental. A party who seeks enlargement of time after expiry of a limitation period invokes a discretion which the statute may or may not confer. A party who says the deadline itself rolled over to the next working day does not ask for discretion at all. He simply contends that, on proper computation, the period had not expired when the suit was filed.
7. Section 4(2) of the Limitation of Actions Act provides:
2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of twelve months from such date.
8. Section 4 of the Limitation of Actions Act prescribes the substantive limitation period for actions founded on contract or tort. The provision is couched in mandatory terms, and courts have consistently held that limitation goes to jurisdiction.
9. The original case that informed this appeal lies on the three-year limitation period for actions founded on tort, including claims for material damage. Part III of the Limitation of Actions Act contains specific provisions on extension of time in limited circumstances, most notably in personal injury claims and cases involving disability, fraud, mistake, or ignorance of material facts. The Act is therefore restrictive where extension is concerned, and courts must be slow to imply powers of enlargement that Parliament has not conferred.
10. However, the present appeal is not about enlargement of time under Part III. It is about the general method of computing time. For that purpose, Section 57 of the Interpretation and General Provisions Act is of central importance.
Section 57: 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.
11. Order 50 rule 3 of the Civil Procedure Rules restates the same principle in civil practice.
‘Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof, such act or proceeding cannot be done, or taken on that day, such act or proceeding shall so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open’.
12. While the Civil Procedure Rules cannot override a substantive statute, they do reflect the long established rule that a party is not to be penalized for failing to act on a day when the registry is officially closed.
13. It is common ground that the cause of action accrued on 29th June 2022 and that the suit was filed on 30th June 2025. The trial court treated 28th June 2025 as the final day of the three-year period. This fell on a Saturday. The appellant contends that the correct approach, excluding the date of accrual, would have been 29th June 2025 as the final day. Which would have been a Sunday. On either view, the crucial point is that the terminal day fell on a weekend when the registry was closed.
14. Once that fact is accepted, section 57(b) and (c) of the Interpretation and General Provisions Act comes into play. The trial court appears to have conflated two separate concepts. The first is extension of limitation, which is a substantive relief provided only where the parent statute permits it. The second is computation of time, which is a neutral and general question of how one determines whether the prescribed period has expired.
15. The distinction matters because a statute may bar extension of time while still remaining subject to ordinary rules of computation. Where a statute says a claim must be brought within three years, the court cannot rewrite that period.
16. However, where the last day falls on a day when the registry is not open, the question is not whether the court is enlarging time. The question is whether, by operation of the computation rules, the final day shifted to the next open day.
17. The Appellant relied on Abdirahman Abdi v Safi Petroleum Ltd & 6 Others eKLR, where the court emphasized that rules of procedure and computation of time should be interpreted in a manner that facilitates substantive justice rather than obstructing it on technical grounds.
18. In Mae Properties Ltd v Joseph Kibe Another eKLR, the court treated statutory timelines purposively and declined to adopt an interpretation that would produce an unjust or impractical result.
19. The respondent on the other hand relied on Bosire Ogero v Royal Media Services Ltd eKLR, Mary Ojundwa v Nzoia Sugar Co Ltd eKLR, and Ngure v Kingara & another KEHC 6869. These authorities stand for the proposition that courts lack an equitable discretion to extend time for claims that are statutorily barred, particularly where the Limitation of Actions Act does not permit enlargement. They are undoubtedly correct on that principle.
20. The trial court on the other hand relied on Maersk Kenya Limited v Murabu Chaka Tsuma eKLR. That decision concerned Order 50 rule 4 of the Civil Procedure Rules, which deals with the “Christmas vacation” and excludes a fixed period from computation of time for certain procedural acts. The Court of Appeal held that the rule could not be used to enlarge the six-year limitation period under section 4(1) (a) of the Limitation of Actions Act.
21. In my view, Order 50 rule 4 does not simply move a deadline that falls on a non-working day. It excludes an additional block of time from the computation altogether, thereby lengthening the period in a way that would directly alter the statutory limitation period.
22. Unlike Order 50 Rule 4, which excludes the Christmas recess and thereby enlarges limitation periods, Order 50 Rule 3 does not add time at all. The provision operates as a rule of computation. Where the final day prescribed for performance falls on a day when the registry is closed, the law deems performance on the next open day to be timely. Likewise, section 57(b) and (c) of the Interpretation and General Provisions Act do not enlarge the limitation period; they define what counts as timely performance when the last day lands on a non-working day. This ensures that parties are not prejudiced by circumstances beyond their control, while preserving the strictness of limitation statutes.
23. That approach is consistent with both principle and practicality. A litigant cannot be expected to file in a registry that is closed as a matter of law or administrative fact. If the law required filing on the closed day itself, it would create an artificial trap and defeat access to justice for no substantive reason. The consequence is that the act is deemed duly done if performed on the next day the office is open. The filing on Monday, 30th June 2025, was therefore within time.
24. That distinction is decisive. Authorities dealing with extension after expiry cannot be used to exclude the general statutory rules on computation unless they expressly address that point. The present appeal concerns a rule that determines when the period expires in the first place.
25. I am persuaded that this is the correct and orthodox reading of the law. It avoids the artificial result that a claimant loses a right merely because the last day of the prescribed period fell on a closed day. Nothing in the Limitation of Actions Act evinces a contrary intention sufficient to displace the general rule on computation of time. Silence on computation is not the same as exclusion of the general statute.
26. This interpretation is also consistent with Article 159(2) (d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities. That provision does not override limitation statutes or create time where none exists. But where the statutory text supports a purposive reading that avoids injustice and accords with ordinary computation principles, Article 159(2) (d) reinforces that approach.
27. No prejudice was shown by the respondent arising from the filing on the Monday rather than the preceding weekend. The registry was closed to both parties on the intervening days. The law should not visit fatal consequences on a litigant who acted on the next day the court was open.
28. In Nicholas Kiptoo Arap Salat v IEBC & 7 Others eKLR, the Supreme Court underscored that time limits are not mere technicalities, but it also recognized that the law on computation of time must be applied according to the governing rules. The decision is important not because it permits disregard of deadlines, but because it affirms that deadlines are to be computed lawfully and not mechanically in a manner that defeats the text.
29. For the foregoing reasons, I find that the learned trial magistrate erred in law in failing to apply section 57(b) and (c) of the Interpretation and General Provisions Act, as read together with Order 50 rule 3 of the Civil Procedure Rules, to the computation of the limitation period under section 4(2) of the Limitation of Actions Act. The appellant’s suit was filed within time.
30. Accordingly, I make the following orders:
1. The appeal is allowed.
2. The ruling of the Milimani Small Claims Court delivered on 11th August 2025 in SCCC/E4120/2025 is set aside.
3. The appellant’s claim is reinstated for hearing and determination on the merits before a different adjudicator.
4. Each party shall bear their costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY2026.
M. S. SHARIIF
JUDGE