1. This Ruling is in respect to a Preliminary Objection challenging the Defendant’s Counterclaim raising claims of fraud, defamation, unauthorized use of a name in an illegal transaction, and loss of creditworthiness due to enlisting with the Credit Reference Bureau (CRB), which claims the Plaintiff alleges to be statute-barred.
2. The suit was commenced as Milimani Magistrates Commercial Case No. E6572 of 2010 before it was transferred to this Court. By the Plaint dated 11/10/2010, the Plaintiff, through Messrs Wainaina Ireri & Co. Advocates , sought Judgment against the Defendant for the sum of Kshs 841,986.25 plus interest and costs, allegedly arising from the Defendant’s failure to service a hire-purchase loan facility advanced to him in 2018 as financing for acquisition of a tipper motor vehicle.
3. By the Statement of Defence dated 6/12/2010, the Defendant, through Messrs Minda & Co. Advocates , denied ever being party to the Agreement, and in response filed a Counterclaim seeking general damages against the Plaintiff for fraud and defamation.
4. The Defendant, 13 years later, through its new Advocates, Lumalas Achieng & Kavere Advocates , filed the “ Amended Statement of Defence & Counterclaim ” dated 22/03/2023, which, basically introduced further particulars of the claims for fraud and defamation, specifically, the particular that the Plaintiff allowed an impostor to fraudulently obtain credit in the Defendant’s name, and that the Plaintiff caused the Defendant to be enlisted in the Credit Reference Bureau ( CRB ) in August 2009, and also other acts that lowered the Defendant’s creditworthiness. The Defendant also introduced a new claim for special damages at the sum of Kshs 247,038,182/- alleged to be losses flowing from the Plaintiff’s actions aforesaid.
5. The Defendant, subsequently, 15 years after filing the original Defence, filed the “ Further Amended Statement of Defence & Counterclaim ” dated 18/09/2025, which, introduced yet further particulars of the claims for fraud and defamation, specifically, the particular that the Plaintiff’s causing of the Defendant to be enlisted in the Credit Reference Bureau ( CRB ) in 2009 and other acts, had caused the Plaintiff’s business to eventually collapse in 2012. The Defendant also enhanced the claim for special damages to Kshs 324,868,525/-.
6. In response to this further amendment, the Plaintiff filed the “ Further Amended Reply to Further Amended Defence & Defence to Counterclaim ” dated 6/10/2025. After denying the matters alleged, the Plaintiff also averred that the defamation claim which was raised for the first time in 2010 is statue-barred under the Limitation of Actions Act given the Defendant’s admission in his pleadings and documents that he became aware of the CRB listing in August 2009. The claim for special damages was also alleged to be statute-barred as the cause of action was admittedly discovered in 2009, or at the very least, in 2010, and that, as such, the special damages claim introduced on 23/03/2023 and amended on 18/09/2025, offends the provisions of Section 4(2) and 35 of the Limitation of Actions Act .
7. In response, the Defendant filed the “ Amended Reply to Further Amended Reply to Defence to Counterclaim ” dated 16/01/2026. Regarding the claim for defamation, the Defendant denied that the same is statute-barred urging that it is “ a continuing tort ”. Regarding the claim for special damages, the Defendant also denied that the same is statute-barred urging that the full extent of the “ continuing loss ” became quantifiable over time.
8. The Plaintiff then filed the Notice Preliminary Objection dated 20/01/2026 in which it sought that the Defendant's “ Further Amended Statement of Defence and Counterclaim ” dated 18/09/2025 be struck out on the ground that it is is ex-facie statute-barred, the Defendant having expressly pleaded that the alleged CRB listing, alleged defamation, and alleged loss of creditworthiness occurred in 2009 thereby placing the claim founded on defamation outside the limitation periods prescribed by law. It was averred that as such, the claim for defamation is hopelessly time-barred, having accrued upon the alleged CRB listing in 2009, contrary to Section 20A of the Defamation Act , read together with Section 4(2) of the Limitation of Actions Act , which mandates that actions for defamation be instituted within 12 months of accrual. It was further contended that the Defendant's plea that defamation constitutes a “ continuing tort ” is legally unsustainable given that limitation in defamation and publication-based claims run from the date of first publication or listing, not from alleged continuing consequences, reputational harm, or subsequent financial loss. The claims founded on fraud, impersonation, negligence, and/or loss of creditworthiness were also alleged to be statute-barred, the Defendant having pleaded discovery of the alleged fraud or wrongful acts no later than 2010, yet maintaining and expanding the Counterclaim many years outside the statutory periods stipulated under Sections 4(2) and 26 of the Limitation of Actions Act . The claim for special damages in the sum of Kshs 324,868,525/- was also described as wholly derivative and parasitic, being expressly pleaded as flowing from the alleged CRB listing and defamation, and, as such, cannot survive once the principal causes of action are time-bared. It was then contended that the Defendant's attempt to re-quantify and escalate alleged losses “ as of 1 st June 2025 ” does not arrest or reset limitation, the same having run from accrual of the cause of action and not from the date of alleged assessment, computation, or actuarial valuation of loss. In conclusion, it was asserted that limitation goes to jurisdiction and, the Court is devoid of jurisdiction to entertain a statute-barred claim irrespective of the manner in which the claim is framed, amended, or repackaged.
9. It was then directed that the Preliminary Objection be heard and determined first, and pursuant thereto, the parties filed written Submissions. The Plaintiff’s Submissions is dated 12/03/2026, while the Defendant’s is dated 22/06/2026.
Plaintiffs’ Submissions
10. In respect of the objection that the claims for defamation, fraud, negligence and loss of creditworthiness were filed outside the limitation of time period, and were thus statute-barred, Mr. Kabaiku , the Plaintiff’s Counsel basically reiterated the matters already set out in the Notice of Preliminary Objection. He then however seemingly veered into arguing a fresh limb of Preliminary Objection not raised in the Notice. In doing so, he submitted that paragraph 10 of the Statement of Defence dated 6/12/2010 which introduced the claims of defamation and unauthorized use of the Defendant’s name, does not constitute a proper Counterclaim within the meaning of Order 7 Rule 3 and Order 7 Rule 5(a) of the Civil Procedure Rules , since a Counterclaim must be pleaded as a distinct and identifiable pleading, complete with its own title indicating the parties thereto, material facts, and the reliefs sought, and must also be accompanied by a Verifying Affidavit as required under Order 4 Rule 1(2) of the Civil Procedure Rules . He termed the Counterclaim, as amounting to merely a passing averment within the Defence dated 6/12/2010, and thus suffers from the foregoing fundamental procedural defects. He submitted that Courts have held that such defects are not mere technicalities but go to the competence of the pleading itself, and as such, the omissions render the purported Counterclaim incompetent. Counsel also cited several authorities in support of the various limbs of his submissions.
Defendant’s Submissions
11. In opposing the Preliminary Objection, Counsel for the Defendant submitted that although it is not disputed that a plea of limitation or disputing the Court's jurisdiction are well accepted grounds for a Preliminary Objection, the instant challenge falls outside the scope of a proper Preliminary Objection since the challenge addresses issues such as the date when the cause of action accrued which are factual and evidentiary matters which can only be properly determined upon full hearing, production of evidence and evaluation of contested facts. She contended that limitation is not always amenable to determination through a Preliminary Objection, particularly where material facts are disputed. Coinsel added that a cause of action is a bundle of facts which, together with the applicable law, entitles a party to relief, that it is not limited to the actual infringement of a right but encompasses all material facts on which the claim is founded, including every fact the Defendant must prove to obtain judgment. She asserted that as such, it follows that the question of when the Defendant's cause of action accrued cannot be determined in isolation, as it requires an examination of all the material facts surrounding the Plaintiff's conduct, the resulting CRB blacklisting and the continuing harm occasioned thereby. She submitted that these are precisely the kinds of facts that are in dispute between the parties, which cannot be ascertained from the Counterclaim alone, and that as such, the limitation ground cannot be disposed of by way of a Preliminary Objection. Counsel insisted that the matters complained against by the Defendant are “ continuing ” in nature and thus no limitation periods can extinguish them until the underlying obligation is fully discharged. Regarding the CBR listing for instance, Counsel urged that it continues to cause harm as it has not been removed, and that it therefore perpetually affects the Defendant’s creditworthiness, professional standing, and ability to access banking facilities.
12. She thus asserted that the damage is not a single event but an “ ongoing ” state of affairs that persists to date, and that whether the listing constitutes a “ continuing wrong ” is a factual question that cannot be resolved on a Preliminary Objection. Regarding the claim on fraud and fraudulent concealment, Counsel contended that under Section 26 of the Limitation of Actions Act , where an action is based on the fraud, the period of limitation does not begin to run until the Defendant has discovered the fraud, or could, with reasonable diligence have discovered it, that in this case, the CRB listing was fraudulent and the full extent of the damage to his credit reputation and business was not discovered until later. She submitted that whether and when the Defendant discovered the fraud and whether the Plaintiff concealed material facts, are factual questions requiring evidence, which cannot be done on a Preliminary Objection.
13. She also urged that Section 27 of the Limitation of Action Act which permits extension of time where material facts of a decisive character were outside the Claimant’s knowledge, urging that in this case, the Defendant has pleaded that the consequences of the CRB listing, including the collapse of his business in 2012, and insisted that as such, the continuing denial of credit facilities were not fully appreciated until later years. According to her, whether the Defendant knew or ought to have known of these material facts within the limitation period is a question of evidence that can only be determined at trial. Counsel therefore insisted that the limitation ground is not a pure point of law but a complex factual inquiry requiring viva voce evidence, cross-examination and evaluation, urging that the plea is therefore premature. Counsel, too, cited several authorities to buttress the various arguments she advanced.
Determination
14. The issues for determination arising from the Preliminary Objection are evidently the following:
i) Whether the contention that the claims in the Counterclaim founded on the respective causes of action of fraud, defamation, unauthorized use of the Defendant’s name in an illegal transaction, and loss of creditworthiness due to enlisting with the Credit Reference Bureau (CRB), and also the claim for special damages are statute-barred under the Limitation of Actions Act meets the threshold of what constitutes a Preliminary Objection.
ii) If so, whether the said claims are statute-barred?
15. In answering issues (i) , it must be recalled that a Preliminary Objection must raise a pure point of law, and not require the ascertainment of disputed facts. This time-honored principle was affirmed in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, cited with approval by the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR , as follows:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained, or if what is sought is the exercise of judicial discretion.”
16. Applying the above principles, I have no hesitation in finding that the contention that the claims are statute-barred easily meets the threshold of a Preliminary Objection as they arise by clear implication out of the pleadings, and facts relating to each are clear. Further, if argued as a Preliminary point, any has the potential to entirely dispose of the respective claims. I will therefore proceed to determine the matter as Preliminary Objections.
17. Regarding issue (ii ), I must state that the Limitation of Actions Act is important since it promotes legal certainty, and also reduces delays as it encourages aggrieved parties to act timeously in enforcing their rights. It also protects potential defendants from the perpetual uncertainty over an indefinite period of not knowing whether they will be sued, and it also promotes fair trial as it ensures that evidence is dealt with while still fresh.
18. In this case, it is not in dispute that in the initial Statement of Defence dated 6/12/2010, though evidently falling short of the basics of proper drafting, the Defendant did plead what amounts to a “Counterclaim” by praying for general damages on the grounds of loss and suffering allegedly arising out of fraudulent and defamatory actions of the Plaintiff. The claim on fraud was based on the allegation that the Plaintiff entered into the Hire-Purchase Agreement with an unknown person in the name of the Defendant, without the Defendant’s knowledge or consent. The claim on defamation was, on its part, based on the allegation that by entering into the “false” Hire-Purchase Agreement with the unknown party who never paid the debt, the Plaintiff had portrayed the Defendant as a fraudster and as a person who does not pay his debts. There was also a claim for special damages though it was neither particularized or assigned a figure. The Defendant’s new Advocates, realizing the shortfalls in the Counterclaim, then 13 years later, amended the Defence on 22/03/2023. In this amendment however, the Defendant, in the belief that he was to bolstering the claim on defamation, introduced or let out the disclosure that the Plaintiff caused him to be enlisted in the CBR in August 2009 thereby lowering his credit-worthiness by causing his being barred from accessing credit and, in turn, leading him to sell some of his motor vehicles which he used to operate as “matatus” in order to pay off his debts. He pleaded that as a result, he suffered special damages amounting to Kshs 247,038/-. The further amendment made 15 years after filing of the original Defence, on 18/09/2025, then disclosed that the Defendant’s business alleged to have suffered the consequences of the Plaintiff’s adverse actions, eventually collapsed in the year 2012. The amendment also enhanced the special damages claim to Kshs 324,868,525/-.
19. It is clearly the Defendant’s disclosure that the CRB listing was made in August 2009 that jolted the Plaintiff into raising the objection that the Counterclaim is statute-barred pursuant to the provisions of Section 4(2) of the Limitation of Actions Act , premised as follows:
“4(2) An action founded on tort may not be brought after the end of three years from the date of 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 ”.
20. If the above definition is to be interpreted literally, then it would mean that the cause of action founded on defamation having accrued in August 2009, the 12-months limitation period therefore expired or lapsed, in or about July 2010. The defamation claim having been pleaded in the initial Statement of Defence filed on 7/12/2010, it would mean that the same was brought about 5 months out of time.
21. Even as I say so, I must state that the Plaintiff’s contention that the defamation claim was first introduced by way of the amendments made in 2023 or 2025 is clearly incorrect. The true position is that both the claim on defamation and on fraud, though not so well pleaded, were present in the original Defence & Counterclaim raised in December 2010. The claim for special damages, too, was included therein, save that no particulars were given, nor a figure assigned thereto.
22. In responding to the limitation of actions objection, the Defendant has attempted to characterize the claims on defamation and fraud as “ continuing ”. It is indeed true that in appropriate causes of action such as in employment cases, the limitation period does not begin to run until the ongoing wrongful act or damage completely stops. In such instances, the date of cessation of the wrong is then construed to be the date when the cause of action has accrued. In a case of “ continuing wrong ”, every repetition or continuation of the wrongful act creates a fresh, recurring cause of action. Time therefore starts to run afresh with each new occurrence, or alternatively, the final limitation window is calculated from the exact date the continuous injury ends. In such cases therefore, the Courts will distinguish between a single, completed wrongful incident with lingering long-term effects (which is not a continuing wrong), and an ongoing, uninterrupted breach or discriminatory practice (which is what qualifies as a continuing wrong).
23. In respect of defamation, the cause of action is generally strictly subjected to the 12-month limitation period, namely, from the date of the initial publication. As was upheld by Ngaah J in the case of Royal Media Services Ltd v Valentine Mugure Maina & Maureen Murimi [2019] KEHC 3644 (KLR) , Kenyan Courts generally do not recognize static online content as a “ continuing tort ” that resets the clock. It has however been urged in many instances that with the advancements made in technology, cases where there is a new distinct, new republication or separate targeted communication by a defendant should be construed as “ continuing ” defamation. In such cases, it is argued that each such new republication should be interpreted to create a new fresh cause of action. Cases which may fall in this category of argument include such as where the defendant shares, forwards, or re-posts the defamatory statement to a new audience or platform outside the 12-month window, or the content is significantly updated or altered and re-released in a materially different form by the original publisher, or where separate oral statements repeating the original libel/slander are made to different third parties at a later date. However, as held in the Indian case of Khawar Butt vs. Asif Nazir Mir and Ors. (CS (OS) 290/2010) , simply leaving an article, tweet, or social media post online where people can still view or share it is not generally construed to constitute a “ continuing ” publication or fresh accrual of the cause of action.
24. Regarding alleged belated “ discovery ” of the defamation, while Section 27 of the Act permits extension of time for “ignorance of material facts” (the discovery rule), Courts have repeatedly ruled that this extension only applies to specific torts such as negligence, nuisance, or breach of duty causing personal injuries . It explicitly does not therefore apply to defamation claims. As such, excuses such as the mere fact that the Plaintiff only recently “ discovered ” an old publication, or was still verifying or tracing the intended defendant’s identity, or only much later did the Plaintiff began “ feeling ” the real effects of the libelous content, cannot not suffice in defamation claims (see the Court of Appeal case of Wycliffe A. Swanya vs Toyota East Africa Ltd & Anor [2009] eKLR )
25. In the case of Court of Appeal case of Wycliffe A. Swanya vs Toyota (supra) , the alleged defamatory words were said to have been uttered on 12/11/2005, while the suit seeking relief for defamation was filed on 17/01/2007, thus about 2 months outside the 12-months statutory limit. The Plaintiff, faced with an objection on limitation of actions, such as the one raised in this case, argued before the trial Court , that though the utterances were made on 12/11/2005, he only started to “ feel ” their negative impact in May 2006. This argument was rejected by the trial Court and the suit dismissed for being statute-barred. In dismissing the Appeal by the Plaintiff, and in interpreting Section 4(2) of the Limitation of Actions Act , the Court of Appeal stated that:
“after the end of 12 months from the date the cause of action accrued”
14. and we understand this to mean from the date the slanderous remarks are made. (see proviso to section 4 (2) – of the Limitation of Actions Act and section 20 of the Defamation Act ). It would be absurd for slanderous remarks to be made about a person and then he/she waits until he/she feels the effects thereof to file an action in court. If this be the case then there would be no need for any limitation period to be specified. In the appeal before us the slanderous remarks were made on 12 th November, 2005 and the latest the suit should have been filed would have been 11 th or 12 th November, 2006. We find it strange that the appellant should wait to feel the impact of the remarks allegedly made by the respondents beyond the limitation period from May 2005 to file the case in the superior court on 17 th January, 2007.”
26. The case thus firmly established that the 12-month limitation period begins strictly from the date the slanderous remarks are made or libellous content published, not from when a party “ feels ” the ongoing effects, and that neither the Court's general discretion nor the statutory provisions for “ belated discovery ’ can save a defamation suit filed out of time. The Court of Appeal also emphasized that waiting past the statutory window would render the specified limitation period meaningless.
27. Although the Defendant’s Counsel cited the case of Iga v Makerere University [1972] 1 EA 65 (CAK) , that was a much earlier decision of the East African Court of Appeal. In any event, that case did not create any custom or judicial exceptions to the rule on limitation of actions. The case, though also based on tort, was not even a defamation suit; but one seeking damages for personal injuries. Further, the Court upheld the dismissal of the action for having been brought out of time. Similarly, the Court of Appeal case of Habib Bank A.G. Zurich v Rajnikant Khetshi Shah [2018] KECA 774 (KLR ) relied on by Counsel, did not address or create any exceptions to the limitation of actions rule for defamation cases. The litigation in that case centred entirely on banking, land law, and contractual debt recovery, not a tortious claim of libel or slander.
28. The attempt by the Defendant, in Paragraphs 7 and 8 of the “ Further Amended Statement of Defence and Counterclaim ”, dated 18/09/2025, to re-package the defamation claim by belatedly trying to link it to the newly introduced particulars of fraud relating to the impugned execution of the Agreement with an alleged impostor falls flat as it is obviously a clever attempt to circumvent the law on limitation of actions. I reject it.
29. By reason of the foregoing, I am satisfied that the cause of action founded on defamation accrued in August 2009, and the 12-months limitation period therefore expired or lapsed in or about the end of July 2010. The claim having been pleaded in the initial Statement of Defence filed on 7/12/2010, it would mean that it was brought out of time by about 5 months. The claim founded on defamation cannot therefore be sustained.
30. Regarding the claim for “ special damages ”, although it was pleaded and prayed for in the Defendant’s original Statement of Defence filed in 2010, I note that the allegation of the CRB listing in August 2009 was first introduced by way of the “ Amended Statement of Defence & Counterclaim ” dated 22/03/2023. I also note that the same was then described and explained in the Defendant’s “ Amended Reply to Further Amended Reply to Defence to Counterclaim ” dated 16/01/2026 as “ a direct financial loss arising from the collapse of his public transport business due to the Plaintiff’s wrongful CRB listing, which crippled his ability to access credit .” Clearly therefore, the prayer for “ special damages ” is founded entirely on the allegation of “ loss of creditworthiness ” arising from the CRB listing, which was itself expressly stated to have been effected in August 2009. Being a tort carrying a 3 years-limitation of actions window under Section 4(2) of the Limitation of Actions Act , I agree with Mr. Kabaiku that this claim, too, was no doubt, brought out of time.
31. Regarding the claim founded on “ fraud ” arising from the alleged execution of the Hire Purchase Agreement, the same was indeed pleaded and particularized in the original Defence filed in December 2010. I however observe that at paragraphs 3 of the “ Amended Reply to Further Amended Reply to Defence to Counterclaim ” dated 16/01/2026, it is pleaded that the Defendant discovered the fraud in December 2011, which I curiously note, is one year after he had already introduced the very same claim. Be that as it may, I find no problem with the claim regarding limitation of actions considering that the Agreement is stated, in the Plaint, to be dated 18/12/2010 (although the copy of the Agreement on record reads 18/12/2008). The claim is evidently therefore not at all caught up by the 3-years limitation period for torts. In any case, under Section 26 of the Limitation of Actions Act , in an action based on fraud, the limitation period does not begin to run until the claimant discovers or could have discovered the fraud .
32. Regarding the claim founded on “ impersonation ”, this, too, was pleaded in the original Defence filed in December 2010, even if not in that exact wording or phrase. A claim alleging impersonation causing financial loss being typically a claim alluding to “ fraud ”, this, too, is not caught up by the 3-years limitation period, whether computed from the date of its execution, or upon its alleged discovery.
33. Regarding “ negligence ”, I have not “seen” any specific express claim, pleading or prayer to that effect in the Counterclaim. I will not therefore belabour that cause of action.
Final Orders
34. For the above reasons, the Respondent’s Preliminary Objection dated 20/01/2026 partially succeeds, only to the extent that the following orders relating to the Defendant’s “ Further Amended Statement of Defence & Counterclaim ” dated 18/09/2025, are hereby made:
i) The portions of the Defendant’s Counterclaim founded on the causes of action of defamation and loss of creditworthiness , and prayers made thereunder, including the claim and prayer for special damages , are all struck out for being statute-barred under the provisions of the Limitation of Actions Act .
ii) The rest of the causes of action raised or invoked in the Counterclaim shall proceed to trial.
35. The Plaintiff is awarded costs of the Preliminary Objection.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18 TH DAY OF SEPTEMBER 2026
………………………..
WANANDA JOHN R. WANANDA
JUDGE
Delivered in the presence of:
Mr. Geoffrey Ngugi h/b for Mr. Kabaiku for the Plaintiff
Ms. Karago h/b for Ms. Omondi for the Defendant
Court Assistant: Amos Boso
2. The suit was commenced as Milimani Magistrates Commercial Case No. E6572 of 2010 before it was transferred to this Court. By the Plaint dated 11/10/2010, the Plaintiff, through Messrs Wainaina Ireri & Co. Advocates , sought Judgment against the Defendant for the sum of Kshs 841,986.25 plus interest and costs, allegedly arising from the Defendant’s failure to service a hire-purchase loan facility advanced to him in 2018 as financing for acquisition of a tipper motor vehicle.
3. By the Statement of Defence dated 6/12/2010, the Defendant, through Messrs Minda & Co. Advocates , denied ever being party to the Agreement, and in response filed a Counterclaim seeking general damages against the Plaintiff for fraud and defamation.
4. The Defendant, 13 years later, through its new Advocates, Lumalas Achieng & Kavere Advocates , filed the “ Amended Statement of Defence & Counterclaim ” dated 22/03/2023, which, basically introduced further particulars of the claims for fraud and defamation, specifically, the particular that the Plaintiff allowed an impostor to fraudulently obtain credit in the Defendant’s name, and that the Plaintiff caused the Defendant to be enlisted in the Credit Reference Bureau ( CRB ) in August 2009, and also other acts that lowered the Defendant’s creditworthiness. The Defendant also introduced a new claim for special damages at the sum of Kshs 247,038,182/- alleged to be losses flowing from the Plaintiff’s actions aforesaid.
5. The Defendant, subsequently, 15 years after filing the original Defence, filed the “ Further Amended Statement of Defence & Counterclaim ” dated 18/09/2025, which, introduced yet further particulars of the claims for fraud and defamation, specifically, the particular that the Plaintiff’s causing of the Defendant to be enlisted in the Credit Reference Bureau ( CRB ) in 2009 and other acts, had caused the Plaintiff’s business to eventually collapse in 2012. The Defendant also enhanced the claim for special damages to Kshs 324,868,525/-.
6. In response to this further amendment, the Plaintiff filed the “ Further Amended Reply to Further Amended Defence & Defence to Counterclaim ” dated 6/10/2025. After denying the matters alleged, the Plaintiff also averred that the defamation claim which was raised for the first time in 2010 is statue-barred under the Limitation of Actions Act given the Defendant’s admission in his pleadings and documents that he became aware of the CRB listing in August 2009. The claim for special damages was also alleged to be statute-barred as the cause of action was admittedly discovered in 2009, or at the very least, in 2010, and that, as such, the special damages claim introduced on 23/03/2023 and amended on 18/09/2025, offends the provisions of Section 4(2) and 35 of the Limitation of Actions Act .
7. In response, the Defendant filed the “ Amended Reply to Further Amended Reply to Defence to Counterclaim ” dated 16/01/2026. Regarding the claim for defamation, the Defendant denied that the same is statute-barred urging that it is “ a continuing tort ”. Regarding the claim for special damages, the Defendant also denied that the same is statute-barred urging that the full extent of the “ continuing loss ” became quantifiable over time.
8. The Plaintiff then filed the Notice Preliminary Objection dated 20/01/2026 in which it sought that the Defendant's “ Further Amended Statement of Defence and Counterclaim ” dated 18/09/2025 be struck out on the ground that it is is ex-facie statute-barred, the Defendant having expressly pleaded that the alleged CRB listing, alleged defamation, and alleged loss of creditworthiness occurred in 2009 thereby placing the claim founded on defamation outside the limitation periods prescribed by law. It was averred that as such, the claim for defamation is hopelessly time-barred, having accrued upon the alleged CRB listing in 2009, contrary to Section 20A of the Defamation Act , read together with Section 4(2) of the Limitation of Actions Act , which mandates that actions for defamation be instituted within 12 months of accrual. It was further contended that the Defendant's plea that defamation constitutes a “ continuing tort ” is legally unsustainable given that limitation in defamation and publication-based claims run from the date of first publication or listing, not from alleged continuing consequences, reputational harm, or subsequent financial loss. The claims founded on fraud, impersonation, negligence, and/or loss of creditworthiness were also alleged to be statute-barred, the Defendant having pleaded discovery of the alleged fraud or wrongful acts no later than 2010, yet maintaining and expanding the Counterclaim many years outside the statutory periods stipulated under Sections 4(2) and 26 of the Limitation of Actions Act . The claim for special damages in the sum of Kshs 324,868,525/- was also described as wholly derivative and parasitic, being expressly pleaded as flowing from the alleged CRB listing and defamation, and, as such, cannot survive once the principal causes of action are time-bared. It was then contended that the Defendant's attempt to re-quantify and escalate alleged losses “ as of 1 st June 2025 ” does not arrest or reset limitation, the same having run from accrual of the cause of action and not from the date of alleged assessment, computation, or actuarial valuation of loss. In conclusion, it was asserted that limitation goes to jurisdiction and, the Court is devoid of jurisdiction to entertain a statute-barred claim irrespective of the manner in which the claim is framed, amended, or repackaged.
9. It was then directed that the Preliminary Objection be heard and determined first, and pursuant thereto, the parties filed written Submissions. The Plaintiff’s Submissions is dated 12/03/2026, while the Defendant’s is dated 22/06/2026.
Plaintiffs’ Submissions
10. In respect of the objection that the claims for defamation, fraud, negligence and loss of creditworthiness were filed outside the limitation of time period, and were thus statute-barred, Mr. Kabaiku , the Plaintiff’s Counsel basically reiterated the matters already set out in the Notice of Preliminary Objection. He then however seemingly veered into arguing a fresh limb of Preliminary Objection not raised in the Notice. In doing so, he submitted that paragraph 10 of the Statement of Defence dated 6/12/2010 which introduced the claims of defamation and unauthorized use of the Defendant’s name, does not constitute a proper Counterclaim within the meaning of Order 7 Rule 3 and Order 7 Rule 5(a) of the Civil Procedure Rules , since a Counterclaim must be pleaded as a distinct and identifiable pleading, complete with its own title indicating the parties thereto, material facts, and the reliefs sought, and must also be accompanied by a Verifying Affidavit as required under Order 4 Rule 1(2) of the Civil Procedure Rules . He termed the Counterclaim, as amounting to merely a passing averment within the Defence dated 6/12/2010, and thus suffers from the foregoing fundamental procedural defects. He submitted that Courts have held that such defects are not mere technicalities but go to the competence of the pleading itself, and as such, the omissions render the purported Counterclaim incompetent. Counsel also cited several authorities in support of the various limbs of his submissions.
Defendant’s Submissions
11. In opposing the Preliminary Objection, Counsel for the Defendant submitted that although it is not disputed that a plea of limitation or disputing the Court's jurisdiction are well accepted grounds for a Preliminary Objection, the instant challenge falls outside the scope of a proper Preliminary Objection since the challenge addresses issues such as the date when the cause of action accrued which are factual and evidentiary matters which can only be properly determined upon full hearing, production of evidence and evaluation of contested facts. She contended that limitation is not always amenable to determination through a Preliminary Objection, particularly where material facts are disputed. Coinsel added that a cause of action is a bundle of facts which, together with the applicable law, entitles a party to relief, that it is not limited to the actual infringement of a right but encompasses all material facts on which the claim is founded, including every fact the Defendant must prove to obtain judgment. She asserted that as such, it follows that the question of when the Defendant's cause of action accrued cannot be determined in isolation, as it requires an examination of all the material facts surrounding the Plaintiff's conduct, the resulting CRB blacklisting and the continuing harm occasioned thereby. She submitted that these are precisely the kinds of facts that are in dispute between the parties, which cannot be ascertained from the Counterclaim alone, and that as such, the limitation ground cannot be disposed of by way of a Preliminary Objection. Counsel insisted that the matters complained against by the Defendant are “ continuing ” in nature and thus no limitation periods can extinguish them until the underlying obligation is fully discharged. Regarding the CBR listing for instance, Counsel urged that it continues to cause harm as it has not been removed, and that it therefore perpetually affects the Defendant’s creditworthiness, professional standing, and ability to access banking facilities.
12. She thus asserted that the damage is not a single event but an “ ongoing ” state of affairs that persists to date, and that whether the listing constitutes a “ continuing wrong ” is a factual question that cannot be resolved on a Preliminary Objection. Regarding the claim on fraud and fraudulent concealment, Counsel contended that under Section 26 of the Limitation of Actions Act , where an action is based on the fraud, the period of limitation does not begin to run until the Defendant has discovered the fraud, or could, with reasonable diligence have discovered it, that in this case, the CRB listing was fraudulent and the full extent of the damage to his credit reputation and business was not discovered until later. She submitted that whether and when the Defendant discovered the fraud and whether the Plaintiff concealed material facts, are factual questions requiring evidence, which cannot be done on a Preliminary Objection.
13. She also urged that Section 27 of the Limitation of Action Act which permits extension of time where material facts of a decisive character were outside the Claimant’s knowledge, urging that in this case, the Defendant has pleaded that the consequences of the CRB listing, including the collapse of his business in 2012, and insisted that as such, the continuing denial of credit facilities were not fully appreciated until later years. According to her, whether the Defendant knew or ought to have known of these material facts within the limitation period is a question of evidence that can only be determined at trial. Counsel therefore insisted that the limitation ground is not a pure point of law but a complex factual inquiry requiring viva voce evidence, cross-examination and evaluation, urging that the plea is therefore premature. Counsel, too, cited several authorities to buttress the various arguments she advanced.
Determination
14. The issues for determination arising from the Preliminary Objection are evidently the following:
i) Whether the contention that the claims in the Counterclaim founded on the respective causes of action of fraud, defamation, unauthorized use of the Defendant’s name in an illegal transaction, and loss of creditworthiness due to enlisting with the Credit Reference Bureau (CRB), and also the claim for special damages are statute-barred under the Limitation of Actions Act meets the threshold of what constitutes a Preliminary Objection.
ii) If so, whether the said claims are statute-barred?
15. In answering issues (i) , it must be recalled that a Preliminary Objection must raise a pure point of law, and not require the ascertainment of disputed facts. This time-honored principle was affirmed in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, cited with approval by the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR , as follows:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained, or if what is sought is the exercise of judicial discretion.”
16. Applying the above principles, I have no hesitation in finding that the contention that the claims are statute-barred easily meets the threshold of a Preliminary Objection as they arise by clear implication out of the pleadings, and facts relating to each are clear. Further, if argued as a Preliminary point, any has the potential to entirely dispose of the respective claims. I will therefore proceed to determine the matter as Preliminary Objections.
17. Regarding issue (ii ), I must state that the Limitation of Actions Act is important since it promotes legal certainty, and also reduces delays as it encourages aggrieved parties to act timeously in enforcing their rights. It also protects potential defendants from the perpetual uncertainty over an indefinite period of not knowing whether they will be sued, and it also promotes fair trial as it ensures that evidence is dealt with while still fresh.
18. In this case, it is not in dispute that in the initial Statement of Defence dated 6/12/2010, though evidently falling short of the basics of proper drafting, the Defendant did plead what amounts to a “Counterclaim” by praying for general damages on the grounds of loss and suffering allegedly arising out of fraudulent and defamatory actions of the Plaintiff. The claim on fraud was based on the allegation that the Plaintiff entered into the Hire-Purchase Agreement with an unknown person in the name of the Defendant, without the Defendant’s knowledge or consent. The claim on defamation was, on its part, based on the allegation that by entering into the “false” Hire-Purchase Agreement with the unknown party who never paid the debt, the Plaintiff had portrayed the Defendant as a fraudster and as a person who does not pay his debts. There was also a claim for special damages though it was neither particularized or assigned a figure. The Defendant’s new Advocates, realizing the shortfalls in the Counterclaim, then 13 years later, amended the Defence on 22/03/2023. In this amendment however, the Defendant, in the belief that he was to bolstering the claim on defamation, introduced or let out the disclosure that the Plaintiff caused him to be enlisted in the CBR in August 2009 thereby lowering his credit-worthiness by causing his being barred from accessing credit and, in turn, leading him to sell some of his motor vehicles which he used to operate as “matatus” in order to pay off his debts. He pleaded that as a result, he suffered special damages amounting to Kshs 247,038/-. The further amendment made 15 years after filing of the original Defence, on 18/09/2025, then disclosed that the Defendant’s business alleged to have suffered the consequences of the Plaintiff’s adverse actions, eventually collapsed in the year 2012. The amendment also enhanced the special damages claim to Kshs 324,868,525/-.
19. It is clearly the Defendant’s disclosure that the CRB listing was made in August 2009 that jolted the Plaintiff into raising the objection that the Counterclaim is statute-barred pursuant to the provisions of Section 4(2) of the Limitation of Actions Act , premised as follows:
“4(2) An action founded on tort may not be brought after the end of three years from the date of 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 ”.
20. If the above definition is to be interpreted literally, then it would mean that the cause of action founded on defamation having accrued in August 2009, the 12-months limitation period therefore expired or lapsed, in or about July 2010. The defamation claim having been pleaded in the initial Statement of Defence filed on 7/12/2010, it would mean that the same was brought about 5 months out of time.
21. Even as I say so, I must state that the Plaintiff’s contention that the defamation claim was first introduced by way of the amendments made in 2023 or 2025 is clearly incorrect. The true position is that both the claim on defamation and on fraud, though not so well pleaded, were present in the original Defence & Counterclaim raised in December 2010. The claim for special damages, too, was included therein, save that no particulars were given, nor a figure assigned thereto.
22. In responding to the limitation of actions objection, the Defendant has attempted to characterize the claims on defamation and fraud as “ continuing ”. It is indeed true that in appropriate causes of action such as in employment cases, the limitation period does not begin to run until the ongoing wrongful act or damage completely stops. In such instances, the date of cessation of the wrong is then construed to be the date when the cause of action has accrued. In a case of “ continuing wrong ”, every repetition or continuation of the wrongful act creates a fresh, recurring cause of action. Time therefore starts to run afresh with each new occurrence, or alternatively, the final limitation window is calculated from the exact date the continuous injury ends. In such cases therefore, the Courts will distinguish between a single, completed wrongful incident with lingering long-term effects (which is not a continuing wrong), and an ongoing, uninterrupted breach or discriminatory practice (which is what qualifies as a continuing wrong).
23. In respect of defamation, the cause of action is generally strictly subjected to the 12-month limitation period, namely, from the date of the initial publication. As was upheld by Ngaah J in the case of Royal Media Services Ltd v Valentine Mugure Maina & Maureen Murimi [2019] KEHC 3644 (KLR) , Kenyan Courts generally do not recognize static online content as a “ continuing tort ” that resets the clock. It has however been urged in many instances that with the advancements made in technology, cases where there is a new distinct, new republication or separate targeted communication by a defendant should be construed as “ continuing ” defamation. In such cases, it is argued that each such new republication should be interpreted to create a new fresh cause of action. Cases which may fall in this category of argument include such as where the defendant shares, forwards, or re-posts the defamatory statement to a new audience or platform outside the 12-month window, or the content is significantly updated or altered and re-released in a materially different form by the original publisher, or where separate oral statements repeating the original libel/slander are made to different third parties at a later date. However, as held in the Indian case of Khawar Butt vs. Asif Nazir Mir and Ors. (CS (OS) 290/2010) , simply leaving an article, tweet, or social media post online where people can still view or share it is not generally construed to constitute a “ continuing ” publication or fresh accrual of the cause of action.
24. Regarding alleged belated “ discovery ” of the defamation, while Section 27 of the Act permits extension of time for “ignorance of material facts” (the discovery rule), Courts have repeatedly ruled that this extension only applies to specific torts such as negligence, nuisance, or breach of duty causing personal injuries . It explicitly does not therefore apply to defamation claims. As such, excuses such as the mere fact that the Plaintiff only recently “ discovered ” an old publication, or was still verifying or tracing the intended defendant’s identity, or only much later did the Plaintiff began “ feeling ” the real effects of the libelous content, cannot not suffice in defamation claims (see the Court of Appeal case of Wycliffe A. Swanya vs Toyota East Africa Ltd & Anor [2009] eKLR )
25. In the case of Court of Appeal case of Wycliffe A. Swanya vs Toyota (supra) , the alleged defamatory words were said to have been uttered on 12/11/2005, while the suit seeking relief for defamation was filed on 17/01/2007, thus about 2 months outside the 12-months statutory limit. The Plaintiff, faced with an objection on limitation of actions, such as the one raised in this case, argued before the trial Court , that though the utterances were made on 12/11/2005, he only started to “ feel ” their negative impact in May 2006. This argument was rejected by the trial Court and the suit dismissed for being statute-barred. In dismissing the Appeal by the Plaintiff, and in interpreting Section 4(2) of the Limitation of Actions Act , the Court of Appeal stated that:
“after the end of 12 months from the date the cause of action accrued”
14. and we understand this to mean from the date the slanderous remarks are made. (see proviso to section 4 (2) – of the Limitation of Actions Act and section 20 of the Defamation Act ). It would be absurd for slanderous remarks to be made about a person and then he/she waits until he/she feels the effects thereof to file an action in court. If this be the case then there would be no need for any limitation period to be specified. In the appeal before us the slanderous remarks were made on 12 th November, 2005 and the latest the suit should have been filed would have been 11 th or 12 th November, 2006. We find it strange that the appellant should wait to feel the impact of the remarks allegedly made by the respondents beyond the limitation period from May 2005 to file the case in the superior court on 17 th January, 2007.”
26. The case thus firmly established that the 12-month limitation period begins strictly from the date the slanderous remarks are made or libellous content published, not from when a party “ feels ” the ongoing effects, and that neither the Court's general discretion nor the statutory provisions for “ belated discovery ’ can save a defamation suit filed out of time. The Court of Appeal also emphasized that waiting past the statutory window would render the specified limitation period meaningless.
27. Although the Defendant’s Counsel cited the case of Iga v Makerere University [1972] 1 EA 65 (CAK) , that was a much earlier decision of the East African Court of Appeal. In any event, that case did not create any custom or judicial exceptions to the rule on limitation of actions. The case, though also based on tort, was not even a defamation suit; but one seeking damages for personal injuries. Further, the Court upheld the dismissal of the action for having been brought out of time. Similarly, the Court of Appeal case of Habib Bank A.G. Zurich v Rajnikant Khetshi Shah [2018] KECA 774 (KLR ) relied on by Counsel, did not address or create any exceptions to the limitation of actions rule for defamation cases. The litigation in that case centred entirely on banking, land law, and contractual debt recovery, not a tortious claim of libel or slander.
28. The attempt by the Defendant, in Paragraphs 7 and 8 of the “ Further Amended Statement of Defence and Counterclaim ”, dated 18/09/2025, to re-package the defamation claim by belatedly trying to link it to the newly introduced particulars of fraud relating to the impugned execution of the Agreement with an alleged impostor falls flat as it is obviously a clever attempt to circumvent the law on limitation of actions. I reject it.
29. By reason of the foregoing, I am satisfied that the cause of action founded on defamation accrued in August 2009, and the 12-months limitation period therefore expired or lapsed in or about the end of July 2010. The claim having been pleaded in the initial Statement of Defence filed on 7/12/2010, it would mean that it was brought out of time by about 5 months. The claim founded on defamation cannot therefore be sustained.
30. Regarding the claim for “ special damages ”, although it was pleaded and prayed for in the Defendant’s original Statement of Defence filed in 2010, I note that the allegation of the CRB listing in August 2009 was first introduced by way of the “ Amended Statement of Defence & Counterclaim ” dated 22/03/2023. I also note that the same was then described and explained in the Defendant’s “ Amended Reply to Further Amended Reply to Defence to Counterclaim ” dated 16/01/2026 as “ a direct financial loss arising from the collapse of his public transport business due to the Plaintiff’s wrongful CRB listing, which crippled his ability to access credit .” Clearly therefore, the prayer for “ special damages ” is founded entirely on the allegation of “ loss of creditworthiness ” arising from the CRB listing, which was itself expressly stated to have been effected in August 2009. Being a tort carrying a 3 years-limitation of actions window under Section 4(2) of the Limitation of Actions Act , I agree with Mr. Kabaiku that this claim, too, was no doubt, brought out of time.
31. Regarding the claim founded on “ fraud ” arising from the alleged execution of the Hire Purchase Agreement, the same was indeed pleaded and particularized in the original Defence filed in December 2010. I however observe that at paragraphs 3 of the “ Amended Reply to Further Amended Reply to Defence to Counterclaim ” dated 16/01/2026, it is pleaded that the Defendant discovered the fraud in December 2011, which I curiously note, is one year after he had already introduced the very same claim. Be that as it may, I find no problem with the claim regarding limitation of actions considering that the Agreement is stated, in the Plaint, to be dated 18/12/2010 (although the copy of the Agreement on record reads 18/12/2008). The claim is evidently therefore not at all caught up by the 3-years limitation period for torts. In any case, under Section 26 of the Limitation of Actions Act , in an action based on fraud, the limitation period does not begin to run until the claimant discovers or could have discovered the fraud .
32. Regarding the claim founded on “ impersonation ”, this, too, was pleaded in the original Defence filed in December 2010, even if not in that exact wording or phrase. A claim alleging impersonation causing financial loss being typically a claim alluding to “ fraud ”, this, too, is not caught up by the 3-years limitation period, whether computed from the date of its execution, or upon its alleged discovery.
33. Regarding “ negligence ”, I have not “seen” any specific express claim, pleading or prayer to that effect in the Counterclaim. I will not therefore belabour that cause of action.
Final Orders
34. For the above reasons, the Respondent’s Preliminary Objection dated 20/01/2026 partially succeeds, only to the extent that the following orders relating to the Defendant’s “ Further Amended Statement of Defence & Counterclaim ” dated 18/09/2025, are hereby made:
i) The portions of the Defendant’s Counterclaim founded on the causes of action of defamation and loss of creditworthiness , and prayers made thereunder, including the claim and prayer for special damages , are all struck out for being statute-barred under the provisions of the Limitation of Actions Act .
ii) The rest of the causes of action raised or invoked in the Counterclaim shall proceed to trial.
35. The Plaintiff is awarded costs of the Preliminary Objection.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18 TH DAY OF SEPTEMBER 2026
………………………..
WANANDA JOHN R. WANANDA
JUDGE
Delivered in the presence of:
Mr. Geoffrey Ngugi h/b for Mr. Kabaiku for the Plaintiff
Ms. Karago h/b for Ms. Omondi for the Defendant
Court Assistant: Amos Boso