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1. Before the court is the Applicant’s Ex parte originating summons dated March 12 2025 brought pursuant to Articles 48 and 50 (1) of the Constitution, Sections 1A,1B,3A, 63(e) of the Civil Procedure Act, Sections 26, 27(1) and 28(2) of the Limitations of Actions Act Kenya and all other enabling provisions of the law.
2. The Applicant seeks the following prayers that:
a) The Court be pleased to grant the applicant leave to file suit out of time against the respondent for recovery of monies owed for renovation works undertaken
b) The court be pleased to extend time within which the Applicant may institute proceedings against the Respondents
c) That this Honourable Court be pleased to declare that the delay in filing the suit was justified as it arose due to factors beyond the Applicant’s control including prolonged administrative delays by the respondent in processing payment
d) Cost of the Application to be borne by the respondents.
3. The application is based on the grounds set out on its face and supported by the Applicant’s Affidavit in which he averred that he was contracted by the 1st defendant to undertake renovations which work he undertook at a cost of Ksh. 18, 545, 807.40. That he was issued with a payment certificate in 2014 which to date has not been paid.
4. The Applicant averred that the failure to file the suit within the statutory period was not deliberate but was occasioned by factors beyond its control, which include prolonged bureaucratic inefficiencies and unfulfilled promises of payment by the Respondents.
5. The Respondents opposed the application through Grounds of Opposition dated May 9, 2025 in which they contended that the Application is misconceived, bad in law and fatally defective; does not meet the threshold for granting of the orders sought; the court lacks jurisdiction to hear and determine the matter; application is time barred; and the orders sought are untenable therefore incapable of being granted by this honourable Court; and the application lacks merit and ought to be dismissed with costs
6. The application was canvassed by way of written submissions which this court has duly considered alongside the authorities cited by the parties as follows;
Applicant’s Submissions
7. The applicant reiterated its averments that the delay in filing the suit was occasioned by the fact that they were in negotiations with the respondents and relied on their representations and promise that settlement would be forthcoming.
8. The Applicant submitted that the delay in commencing legal proceedings was not borne out of negligence, indolence, or lack of diligence on their part but was as a result of a bona fide belief and legitimate expectation that the matter would be resolved administratively.
9. That the applicant had been in constant engagement with the respondents'' officials since the completion of the renovation works and submission of the payment demands and the respondents not only acknowledged the work done, but also engaged the applicant in correspondence and undertakings suggesting and creating a legitimate expectation that the money would be processed and paid.
10. It is the Applicant’s submission that the delay was excusable as it was occasioned by the continued negotiations and assurances from the respondents that the matter will be settled amicably. Reliance was placed on the case of Njoroge v Kimani (Civil Application Nai E049 of 2022) [2022] KЕСА 1188 (KLR) (28 October 2022) (Ruling).
11. The applicant contends that this Honourable Court has the requisite jurisdiction, derived from both statutory law and the Constitution of Kenya, 2010 to extend the limitation period and allow the filling of this suit out of time in the interest of justice, equity, fairness and substantive justice thereof. They urged that Section 27 and 28 of the Limitation of Actions Act, though limited on scope, should not be read in isolation but alongside the broader legislative framework, the Civil Procedure Act and the Constitution which mandates courts to administer justice efficiently, fairly and proportionately. Therefore, this Court has jurisdiction and discretion to enlarge time and permit the filing of suit out of time.
12. Placing reliance in the case of Elizabeth Akinyi Ounda v Abubakar Wilberforce [2021] eKLR the applicant submitted that courts have consistently emphasized that there is no rigid formular to establish whether sufficient cause for delay has been established and the court should consider the totality of circumstances, including the conduct of the parties, the reason for delay, the length of the delay, the degree of prejudice, and the overriding need to achieve substantive justice.
Respondent’s submissions
13. The respondents submitted that this Honourable court lacks jurisdiction to hear and determine the application herein as it emanated from an alleged contract between the applicant and the Ministry of Interior & Coordination of National Government a government entity.
14. It is the Respondents’ submission that under Section 3(2) of the Public Authorities Limitation Act no proceedings founded on contract can 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.
15. The Respondents further submitted that Section 27 of the Limitations of Actions Act provided for circumstances under which the court would have jurisdiction to extend time. That the action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the plaintiff as a result of the tort which was not the case in the instant suit. Referred to the cases of Willis Onditi Odhiambo vs. Gateway Insurance Co. Ltd (2014)eKLR and Mary Osundwa vs. Nzoia Sugar Co. Ltd (2002) eKLR.
16. That further the reasons for delay as stated by the applicant did not disclose the permissible tests under section 27 of the Limitation of Actions Act to trigger the exercise of this court’s jurisdiction to grant the orders sought. They placed reliance on the case of YH Wholesalers Ltd Vs. Kenya Revenue Authority (2021)eKLR
17. It was their submission that the applicant failed to account for the 11 years delay and no evidence had been tendered to prove that there were promises by the respondents to pay as alleged. That the applicant had not demonstrated that he was precluded from filing this suit. Consequently, there was no basis upon which this court can grant the leave sought and the application lacks merit therefore should be dismissed with costs.
Analysis and Determination
18. The sole issue for determination is whether this court has jurisdiction to exercise its discretion to extend time for filing of a suit from a matter relating to a contract between the Applicant and the Respondent.
19. Section 4 of the Limitation of Actions Act provides that suits founded on contract must be instituted within 6 years from the date the cause of action accrues. According to the Applicant’s averments the cause of action arose in October 2014 upon issuance of the payment certificate. Therefore, the suit ought to have been filed on or before November 2021. However, that was not done. This application was subsequently filed on 12th March 2025 a period of three (3) years and five (5) months after the expiry of the limitation period.
20. In considering whether to exercise its discretion to grant leave, the court must be fully apprised of all relevant facts and circumstances surrounding the delay. The applicant bears the burden of providing satisfactory explanation for the entire period of delay. To merit the court’s indulgence, the Applicant must demonstrate sufficient cause, by presenting a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default.
21. In the instant case, the Applicant attributes the delay to ongoing negotiations with the respondents regarding settlement of the payment. However, no evidence has been availed of such negotiations. The applicant further claims that the Respondents acknowledged the debt and promises of payment, creating a legitimate expectation of settlement. Again, no documentary evidence was placed before the Court to support this assertion.
22. Section 27 of the Limitation Act expressly limits the extension of time to actions founded on torts, specifically those involving negligence, nuisance or breach of duty where the damages claimed relates to personal injuries suffered by the plaintiff. Courts have consistently held that this provision does not confer jurisdiction to extend time for filing suits in cases involving contract or any other causes of action. (See Willis Onditi Odhiambo v Gateway Insurance Supra).
23. Additionally, the Applicant seeks to institute a suit based on a contract against a government entity. Section 3(2) of the Public Authorities Limitation Act provides that:
''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.''
24. A plain reading of Section 3(2 ) of the Public Authorities Limitation Act makes it clear that the courts lacks discretion to extend time for filing suits founded on contract against Government or a local authority except as provided under section 5, which is limited to cases involving disability. In this case the Applicant has not pleaded that the delay was due to any form of disability. Instead, the delay is attributed to alleged negotiations for settlement of the payment with the respondents, which, as noted remain unsubstantiated.
25. This court draws guidance from the decision in YH Wholesalers Limited –vs- Kenya Revenue Authority (2021)KEHC 4159 KLR, Mativo J (as he then was) held that an applicant seeking for extension of time to file suit founded on contract, who was not under disability at the time the alleged cause of action occurred, it cannot benefit from the provision of section 5 of Public Authorities Limitation Act. The court also referenced the decision of Mary Osundwa –vsNzoia Sugar Ltd (2014)KEHC 4622 KLR) which addressed the scope of section 27 of Limitation of Actions Act and observes;
“This section clearly lays down the circumstances in which the court would have jurisdiction to extend time. That action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the claim is in respect of personal injuries…….this section does not give jurisdiction to the court to extend time for filing suits involving contracts or any other causes of action other than tort”. (Emphasis added)
26. It is therefore evident from the foregoing statutory provisions and judicial pronouncements that both the Public Authorities Limitation Act and Limitations of Actions Act (Cap 22) do not confer jurisdiction upon this court to extend time for filing suits founded on contract, save for the specific exceptions provided therein.
27. For these reasons, the Applicant’s Ex parte Originating Summons dated 12th March 2025 is not merited and the same is hereby dismissed. There shall be no order as to costs.
Orders accordingly.
DATED and DELIVERED at MACHAKOS this 24th of November 2025
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1. Before the court is the Applicant’s Ex parte originating summons dated March 12 2025 brought pursuant to Articles 48 and 50 (1) of the Constitution, Sections 1A,1B,3A, 63(e) of the Civil Procedure Act, Sections 26, 27(1) and 28(2) of the Limitations of Actions Act Kenya and all other enabling provisions of the law.
2. The Applicant seeks the following prayers that:
a) The Court be pleased to grant the applicant leave to file suit out of time against the respondent for recovery of monies owed for renovation works undertaken
b) The court be pleased to extend time within which the Applicant may institute proceedings against the Respondents
c) That this Honourable Court be pleased to declare that the delay in filing the suit was justified as it arose due to factors beyond the Applicant’s control including prolonged administrative delays by the respondent in processing payment
d) Cost of the Application to be borne by the respondents.
3. The application is based on the grounds set out on its face and supported by the Applicant’s Affidavit in which he averred that he was contracted by the 1st defendant to undertake renovations which work he undertook at a cost of Ksh. 18, 545, 807.40. That he was issued with a payment certificate in 2014 which to date has not been paid.
4. The Applicant averred that the failure to file the suit within the statutory period was not deliberate but was occasioned by factors beyond its control, which include prolonged bureaucratic inefficiencies and unfulfilled promises of payment by the Respondents.
5. The Respondents opposed the application through Grounds of Opposition dated May 9, 2025 in which they contended that the Application is misconceived, bad in law and fatally defective; does not meet the threshold for granting of the orders sought; the court lacks jurisdiction to hear and determine the matter; application is time barred; and the orders sought are untenable therefore incapable of being granted by this honourable Court; and the application lacks merit and ought to be dismissed with costs
6. The application was canvassed by way of written submissions which this court has duly considered alongside the authorities cited by the parties as follows;
Applicant’s Submissions
7. The applicant reiterated its averments that the delay in filing the suit was occasioned by the fact that they were in negotiations with the respondents and relied on their representations and promise that settlement would be forthcoming.
8. The Applicant submitted that the delay in commencing legal proceedings was not borne out of negligence, indolence, or lack of diligence on their part but was as a result of a bona fide belief and legitimate expectation that the matter would be resolved administratively.
9. That the applicant had been in constant engagement with the respondents'' officials since the completion of the renovation works and submission of the payment demands and the respondents not only acknowledged the work done, but also engaged the applicant in correspondence and undertakings suggesting and creating a legitimate expectation that the money would be processed and paid.
10. It is the Applicant’s submission that the delay was excusable as it was occasioned by the continued negotiations and assurances from the respondents that the matter will be settled amicably. Reliance was placed on the case of Njoroge v Kimani (Civil Application Nai E049 of 2022) [2022] KЕСА 1188 (KLR) (28 October 2022) (Ruling).
11. The applicant contends that this Honourable Court has the requisite jurisdiction, derived from both statutory law and the Constitution of Kenya, 2010 to extend the limitation period and allow the filling of this suit out of time in the interest of justice, equity, fairness and substantive justice thereof. They urged that Section 27 and 28 of the Limitation of Actions Act, though limited on scope, should not be read in isolation but alongside the broader legislative framework, the Civil Procedure Act and the Constitution which mandates courts to administer justice efficiently, fairly and proportionately. Therefore, this Court has jurisdiction and discretion to enlarge time and permit the filing of suit out of time.
12. Placing reliance in the case of Elizabeth Akinyi Ounda v Abubakar Wilberforce [2021] eKLR the applicant submitted that courts have consistently emphasized that there is no rigid formular to establish whether sufficient cause for delay has been established and the court should consider the totality of circumstances, including the conduct of the parties, the reason for delay, the length of the delay, the degree of prejudice, and the overriding need to achieve substantive justice.
Respondent’s submissions
13. The respondents submitted that this Honourable court lacks jurisdiction to hear and determine the application herein as it emanated from an alleged contract between the applicant and the Ministry of Interior & Coordination of National Government a government entity.
14. It is the Respondents’ submission that under Section 3(2) of the Public Authorities Limitation Act no proceedings founded on contract can 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.
15. The Respondents further submitted that Section 27 of the Limitations of Actions Act provided for circumstances under which the court would have jurisdiction to extend time. That the action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the plaintiff as a result of the tort which was not the case in the instant suit. Referred to the cases of Willis Onditi Odhiambo vs. Gateway Insurance Co. Ltd (2014)eKLR and Mary Osundwa vs. Nzoia Sugar Co. Ltd (2002) eKLR.
16. That further the reasons for delay as stated by the applicant did not disclose the permissible tests under section 27 of the Limitation of Actions Act to trigger the exercise of this court’s jurisdiction to grant the orders sought. They placed reliance on the case of YH Wholesalers Ltd Vs. Kenya Revenue Authority (2021)eKLR
17. It was their submission that the applicant failed to account for the 11 years delay and no evidence had been tendered to prove that there were promises by the respondents to pay as alleged. That the applicant had not demonstrated that he was precluded from filing this suit. Consequently, there was no basis upon which this court can grant the leave sought and the application lacks merit therefore should be dismissed with costs.
Analysis and Determination
18. The sole issue for determination is whether this court has jurisdiction to exercise its discretion to extend time for filing of a suit from a matter relating to a contract between the Applicant and the Respondent.
19. Section 4 of the Limitation of Actions Act provides that suits founded on contract must be instituted within 6 years from the date the cause of action accrues. According to the Applicant’s averments the cause of action arose in October 2014 upon issuance of the payment certificate. Therefore, the suit ought to have been filed on or before November 2021. However, that was not done. This application was subsequently filed on 12th March 2025 a period of three (3) years and five (5) months after the expiry of the limitation period.
20. In considering whether to exercise its discretion to grant leave, the court must be fully apprised of all relevant facts and circumstances surrounding the delay. The applicant bears the burden of providing satisfactory explanation for the entire period of delay. To merit the court’s indulgence, the Applicant must demonstrate sufficient cause, by presenting a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default.
21. In the instant case, the Applicant attributes the delay to ongoing negotiations with the respondents regarding settlement of the payment. However, no evidence has been availed of such negotiations. The applicant further claims that the Respondents acknowledged the debt and promises of payment, creating a legitimate expectation of settlement. Again, no documentary evidence was placed before the Court to support this assertion.
22. Section 27 of the Limitation Act expressly limits the extension of time to actions founded on torts, specifically those involving negligence, nuisance or breach of duty where the damages claimed relates to personal injuries suffered by the plaintiff. Courts have consistently held that this provision does not confer jurisdiction to extend time for filing suits in cases involving contract or any other causes of action. (See Willis Onditi Odhiambo v Gateway Insurance Supra).
23. Additionally, the Applicant seeks to institute a suit based on a contract against a government entity. Section 3(2) of the Public Authorities Limitation Act provides that:
''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.''
24. A plain reading of Section 3(2 ) of the Public Authorities Limitation Act makes it clear that the courts lacks discretion to extend time for filing suits founded on contract against Government or a local authority except as provided under section 5, which is limited to cases involving disability. In this case the Applicant has not pleaded that the delay was due to any form of disability. Instead, the delay is attributed to alleged negotiations for settlement of the payment with the respondents, which, as noted remain unsubstantiated.
25. This court draws guidance from the decision in YH Wholesalers Limited –vs- Kenya Revenue Authority (2021)KEHC 4159 KLR, Mativo J (as he then was) held that an applicant seeking for extension of time to file suit founded on contract, who was not under disability at the time the alleged cause of action occurred, it cannot benefit from the provision of section 5 of Public Authorities Limitation Act. The court also referenced the decision of Mary Osundwa –vsNzoia Sugar Ltd (2014)KEHC 4622 KLR) which addressed the scope of section 27 of Limitation of Actions Act and observes;
“This section clearly lays down the circumstances in which the court would have jurisdiction to extend time. That action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the claim is in respect of personal injuries…….this section does not give jurisdiction to the court to extend time for filing suits involving contracts or any other causes of action other than tort”. (Emphasis added)
26. It is therefore evident from the foregoing statutory provisions and judicial pronouncements that both the Public Authorities Limitation Act and Limitations of Actions Act (Cap 22) do not confer jurisdiction upon this court to extend time for filing suits founded on contract, save for the specific exceptions provided therein.
27. For these reasons, the Applicant’s Ex parte Originating Summons dated 12th March 2025 is not merited and the same is hereby dismissed. There shall be no order as to costs.
Orders accordingly.
DATED and DELIVERED at MACHAKOS this 24th of November 2025
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