Introduction
1. Before the Court is an Originating Summons dated 27th September 2023 by the Plaintiff, Nancy Thairu, seeking leave to file suit out of time. I have considered the same together with the affidavit filed in support, the reply sworn in opposition, and the rival submissions of the parties which form part of the record.
2. I note from the outset that the although the Application does not expressly cite the legal basis, the nature of the prayers and supporting material suggests that it is premised on Section 27 of the Limitation of Actions Act, Cap 22 Laws of Kenya, with ancillary references to Sections 23 and 24, and 39 of the Act.
3. The Plaintiff alleges that the cause of action, which relates to a breach of contract, arose in 2006, but due to ongoing negotiations, acknowledgement of debt by the 3rd Defendant, and alleged representations made by the Defendants, she refrained from filing suit within the prescribed six-year limitation period.
4. The 1st and 3rd Defendants oppose the application, arguing that the jurisdiction to extend time under Section 27 is confined strictly to cases of negligence, nuisance, or breach of duty as envisaged under Section 27(2) and that an action founded on contract falls outside the purview of the said provision.
Issues for Determination
4. The Application raises the following key issues:
a) Whether this Court has jurisdiction under the Limitation of Actions Act to grant leave to file a suit for breach of contract out of time;
b) Whether the Plaintiff has met the threshold for invoking Section 23 and 24 of the Act;
c) Whether estoppel or negotiations constitute sufficient grounds for displacing the statutory time bar;
d) Whether the delay of over a decade has been satisfactorily explained.
Analysis and Determination
Jurisdiction under Section 27
5. Section 27 of the Limitation of Actions Act allows for extension of time only in actions founded on tort and specifically for negligence, nuisance, or breach of duty, whether the duty exists by virtue of contract or independently of it. As affirmed in Mary Osundwa v Nzoia Sugar Co. Ltd Civil Appeal No. 244 of 2000, the Court of Appeal held:
"Section 27 of the Limitation of Actions Act does not apply to actions based on contract."
6. Accordingly, and as submitted by the 1st and 3rd Defendants, a claim for breach of contract does not fall within the exceptions contemplated under Section 27, and therefore this Court is bereft of jurisdiction to extend time for filing a contractual claim under that provision.
Application of Section 23 and 24
7. The Plaintiff further contends that an acknowledgment of debt was made by the 3rd Defendant, thereby reviving the cause of action under Section 23. However, the invocation of that section must meet the formalities of Section 24, including that the acknowledgment must be: Made in writing; signed by the party making it; and made before the lapse of the limitation period.
8. No such document was produced. The 3rd Defendant expressly denies any written acknowledgment. In the absence of a signed, written acknowledgment prior to expiry of the limitation period, the Plaintiff cannot rely on Section 23 to defeat the time bar.
On Estoppel and Negotiations
9. The Plaintiff seeks to rely on section 39 of the said Act in relation to various representations made during alleged negotiations to invoke the doctrine of estoppel. However, as rightly observed in YH Wholesalers Limited v Kenya Revenue Authority [2021] eKLR, the court stated that:
“Negotiations per se do not constitute a representation... there must be more than mere discussion.”
10. The Plaintiff did not demonstrate any specific representation of fact by the Defendants that would give rise to a binding estoppel. Moreover, as the Defendants submit, the correspondence exchanged over the years, including demand letters, reveals an adversarial posture, rather than any mutual commitment to resolve the matter amicably.
11. Moreover, estoppel cannot arise where a party has taken formal or coercive action inconsistent with a bona fide belief in ongoing negotiations. In the present matter it is not in dispute that the parties even attended and concluded an arbitration, but the same did not bear fruit for the Applicant.
Delay and Laches
12. The Plaintiff’s cause of action arose in 2006. She had until 2012 to file suit. This Application was filed in 2023—more than a decade later. As held in Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] eKLR and reiterated by Justice Mativo:
“Extension of time is not a right... It is an equitable remedy that is only available to a deserving party... The explanation must cover the entire period of delay and be reasonable.”
13. The Plaintiff has offered no cogent explanation for an 11-year delay. Neither negotiations nor unsupported claims of acknowledgment provide a sufficient excuse in my view. The Plaintiff was legally represented throughout and cannot claim ignorance of the consequences of delay.
14. In light of the foregoing, I find and hold that:
a. The Application is fatally defective for want of jurisdiction under Section 27;
b. There is no evidence to support a claim under Sections 23 and 24;
c. The plea of estoppel is unfounded in law and fact; and
d. The delay is inordinate, unexplained, and prejudicial.
15. The Originating Summons dated 27th September 2023 is according dismissed with costs.
1. Before the Court is an Originating Summons dated 27th September 2023 by the Plaintiff, Nancy Thairu, seeking leave to file suit out of time. I have considered the same together with the affidavit filed in support, the reply sworn in opposition, and the rival submissions of the parties which form part of the record.
2. I note from the outset that the although the Application does not expressly cite the legal basis, the nature of the prayers and supporting material suggests that it is premised on Section 27 of the Limitation of Actions Act, Cap 22 Laws of Kenya, with ancillary references to Sections 23 and 24, and 39 of the Act.
3. The Plaintiff alleges that the cause of action, which relates to a breach of contract, arose in 2006, but due to ongoing negotiations, acknowledgement of debt by the 3rd Defendant, and alleged representations made by the Defendants, she refrained from filing suit within the prescribed six-year limitation period.
4. The 1st and 3rd Defendants oppose the application, arguing that the jurisdiction to extend time under Section 27 is confined strictly to cases of negligence, nuisance, or breach of duty as envisaged under Section 27(2) and that an action founded on contract falls outside the purview of the said provision.
Issues for Determination
4. The Application raises the following key issues:
a) Whether this Court has jurisdiction under the Limitation of Actions Act to grant leave to file a suit for breach of contract out of time;
b) Whether the Plaintiff has met the threshold for invoking Section 23 and 24 of the Act;
c) Whether estoppel or negotiations constitute sufficient grounds for displacing the statutory time bar;
d) Whether the delay of over a decade has been satisfactorily explained.
Analysis and Determination
Jurisdiction under Section 27
5. Section 27 of the Limitation of Actions Act allows for extension of time only in actions founded on tort and specifically for negligence, nuisance, or breach of duty, whether the duty exists by virtue of contract or independently of it. As affirmed in Mary Osundwa v Nzoia Sugar Co. Ltd Civil Appeal No. 244 of 2000, the Court of Appeal held:
"Section 27 of the Limitation of Actions Act does not apply to actions based on contract."
6. Accordingly, and as submitted by the 1st and 3rd Defendants, a claim for breach of contract does not fall within the exceptions contemplated under Section 27, and therefore this Court is bereft of jurisdiction to extend time for filing a contractual claim under that provision.
Application of Section 23 and 24
7. The Plaintiff further contends that an acknowledgment of debt was made by the 3rd Defendant, thereby reviving the cause of action under Section 23. However, the invocation of that section must meet the formalities of Section 24, including that the acknowledgment must be: Made in writing; signed by the party making it; and made before the lapse of the limitation period.
8. No such document was produced. The 3rd Defendant expressly denies any written acknowledgment. In the absence of a signed, written acknowledgment prior to expiry of the limitation period, the Plaintiff cannot rely on Section 23 to defeat the time bar.
On Estoppel and Negotiations
9. The Plaintiff seeks to rely on section 39 of the said Act in relation to various representations made during alleged negotiations to invoke the doctrine of estoppel. However, as rightly observed in YH Wholesalers Limited v Kenya Revenue Authority [2021] eKLR, the court stated that:
“Negotiations per se do not constitute a representation... there must be more than mere discussion.”
10. The Plaintiff did not demonstrate any specific representation of fact by the Defendants that would give rise to a binding estoppel. Moreover, as the Defendants submit, the correspondence exchanged over the years, including demand letters, reveals an adversarial posture, rather than any mutual commitment to resolve the matter amicably.
11. Moreover, estoppel cannot arise where a party has taken formal or coercive action inconsistent with a bona fide belief in ongoing negotiations. In the present matter it is not in dispute that the parties even attended and concluded an arbitration, but the same did not bear fruit for the Applicant.
Delay and Laches
12. The Plaintiff’s cause of action arose in 2006. She had until 2012 to file suit. This Application was filed in 2023—more than a decade later. As held in Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] eKLR and reiterated by Justice Mativo:
“Extension of time is not a right... It is an equitable remedy that is only available to a deserving party... The explanation must cover the entire period of delay and be reasonable.”
13. The Plaintiff has offered no cogent explanation for an 11-year delay. Neither negotiations nor unsupported claims of acknowledgment provide a sufficient excuse in my view. The Plaintiff was legally represented throughout and cannot claim ignorance of the consequences of delay.
14. In light of the foregoing, I find and hold that:
a. The Application is fatally defective for want of jurisdiction under Section 27;
b. There is no evidence to support a claim under Sections 23 and 24;
c. The plea of estoppel is unfounded in law and fact; and
d. The delay is inordinate, unexplained, and prejudicial.
15. The Originating Summons dated 27th September 2023 is according dismissed with costs.