Background and Introduction
1. The plaintiff instituted this suit by way of a plaint dated 24th October 2024. Contemporaneously, the plaintiff filed a Notice of Motion of even date seeking, inter alia, an order compelling the defendant to deposit the sum of Kshs. 3,390,200/= in court and to restrain the defendant from instituting any legal proceedings in relation to the subject matter of the current suit.
2. In response, the defendant filed Grounds of Opposition dated 14th November 2024 and also raised a Preliminary Objection challenging the maintainability of the suit. This ruling is confined to the determination of the Preliminary Objection. The same is anchored on the contention that the suit is statute-barred under Section 4(1)(a) of the Limitation of Actions Act. The defendant asserts that the claim is based on contract and was instituted outside the prescribed six-year limitation period, thereby rendering the suit incompetent and liable to be struck out.
3. In opposition to the objection, the plaintiff submitted that the claim had been affected by an order staying the enforcement of arbitral awards, and that the Court must consider the relevant evidence to determine the existence and effect of such stay orders. As such, it was submitted that the objection fails to meet the threshold of a proper preliminary objection, as defined in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd, [1969] EA 696, since the issues raised require evidentiary interrogation. Counsel for the plaintiff further argued that the stay orders issued by Tuiyot, J interrupted the running of time; that the plaintiff had actively participated in litigation up to the Supreme Court and that such involvement effectively suspended the limitation period.
Analysis and Determination
4. I have carefully considered the preliminary objection raised, alongside the parties’ respective submissions. The main issue for determination is whether the objection meets the legal threshold of a proper preliminary objection.
5. In addressing this question, the decision of the Court of Appeal in Mukisa Biscuit Case, [supra] is particularly instructive. The Court in that case laid down the guiding principles on what constitutes a proper preliminary objection. At page 700, Law, J.A. stated:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by a contract to refer the dispute to arbitration.”
6. At page 701, Sir Charles Newbold, P added:
“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.”
7. Accordingly, in determining the sustainability of the preliminary objection raised herein, the Court must assess whether the objection discloses a pure point of law, capable of disposing of the suit without the need to ascertain contested facts or exercise discretion.
8. In the present case, the preliminary objection is anchored on the provisions of Section 4(1)(a) of the Limitation of Actions Act, which provides as follows:
“The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract.”
9. The question of limitation is not merely procedural but goes to the very jurisdiction of the Court. It is well established in jurisprudence that where a suit is filed outside the statutory limitation period, it is rendered incompetent and is liable to be struck out. This principle was affirmed in Sohanlal Durgadass Rajput & Another V Divisions Integrated Development Programmes Co. Ltd, [2021] eKLR and Bosire Ongero V Royal Media Services, [2015] eKLR, where the courts held that limitation affects the jurisdiction of the Court and may be properly raised and determined by way of a preliminary objection.
10. The crux of the suit before this Court, as stated earlier, is the plaintiff’s claim for settlement of costs arising from an arbitral award dated 25th February 2016. The defendant asserts that the suit is statute-barred, having been filed outside the six-year limitation period prescribed under the Limitation of Actions Act. The plaintiff, on the other hand, disputes this contention, arguing that the limitation period was effectively suspended by stay orders allegedly issued by the court, which interrupted the running of time.
11. The assertions by the parties introduce factual disputes that require the Court to examine and verify whether such stay orders were indeed issued, whether the plaintiff was a party to the relevant proceedings, and whether those orders had the legal effect of interrupting the limitation period. These are not matters that can be resolved on the basis of the pleadings alone; they necessitate a factual inquiry and possibly the production of supporting evidence.
12. Applying the principles in Mukisa Biscuit Case, [supra] to the present case, the Court finds that the objection raised by the defendant does not meet the threshold of a true preliminary objection whose nature and purpose is to summarily dispose of a matter purely on points of law without resorting to evidence.
Disposition
13. Accordingly, the preliminary objection is not sustainable and the same is dismissed. Costs shall be in the cause. It is so ordered.
1. The plaintiff instituted this suit by way of a plaint dated 24th October 2024. Contemporaneously, the plaintiff filed a Notice of Motion of even date seeking, inter alia, an order compelling the defendant to deposit the sum of Kshs. 3,390,200/= in court and to restrain the defendant from instituting any legal proceedings in relation to the subject matter of the current suit.
2. In response, the defendant filed Grounds of Opposition dated 14th November 2024 and also raised a Preliminary Objection challenging the maintainability of the suit. This ruling is confined to the determination of the Preliminary Objection. The same is anchored on the contention that the suit is statute-barred under Section 4(1)(a) of the Limitation of Actions Act. The defendant asserts that the claim is based on contract and was instituted outside the prescribed six-year limitation period, thereby rendering the suit incompetent and liable to be struck out.
3. In opposition to the objection, the plaintiff submitted that the claim had been affected by an order staying the enforcement of arbitral awards, and that the Court must consider the relevant evidence to determine the existence and effect of such stay orders. As such, it was submitted that the objection fails to meet the threshold of a proper preliminary objection, as defined in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd, [1969] EA 696, since the issues raised require evidentiary interrogation. Counsel for the plaintiff further argued that the stay orders issued by Tuiyot, J interrupted the running of time; that the plaintiff had actively participated in litigation up to the Supreme Court and that such involvement effectively suspended the limitation period.
Analysis and Determination
4. I have carefully considered the preliminary objection raised, alongside the parties’ respective submissions. The main issue for determination is whether the objection meets the legal threshold of a proper preliminary objection.
5. In addressing this question, the decision of the Court of Appeal in Mukisa Biscuit Case, [supra] is particularly instructive. The Court in that case laid down the guiding principles on what constitutes a proper preliminary objection. At page 700, Law, J.A. stated:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by a contract to refer the dispute to arbitration.”
6. At page 701, Sir Charles Newbold, P added:
“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.”
7. Accordingly, in determining the sustainability of the preliminary objection raised herein, the Court must assess whether the objection discloses a pure point of law, capable of disposing of the suit without the need to ascertain contested facts or exercise discretion.
8. In the present case, the preliminary objection is anchored on the provisions of Section 4(1)(a) of the Limitation of Actions Act, which provides as follows:
“The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract.”
9. The question of limitation is not merely procedural but goes to the very jurisdiction of the Court. It is well established in jurisprudence that where a suit is filed outside the statutory limitation period, it is rendered incompetent and is liable to be struck out. This principle was affirmed in Sohanlal Durgadass Rajput & Another V Divisions Integrated Development Programmes Co. Ltd, [2021] eKLR and Bosire Ongero V Royal Media Services, [2015] eKLR, where the courts held that limitation affects the jurisdiction of the Court and may be properly raised and determined by way of a preliminary objection.
10. The crux of the suit before this Court, as stated earlier, is the plaintiff’s claim for settlement of costs arising from an arbitral award dated 25th February 2016. The defendant asserts that the suit is statute-barred, having been filed outside the six-year limitation period prescribed under the Limitation of Actions Act. The plaintiff, on the other hand, disputes this contention, arguing that the limitation period was effectively suspended by stay orders allegedly issued by the court, which interrupted the running of time.
11. The assertions by the parties introduce factual disputes that require the Court to examine and verify whether such stay orders were indeed issued, whether the plaintiff was a party to the relevant proceedings, and whether those orders had the legal effect of interrupting the limitation period. These are not matters that can be resolved on the basis of the pleadings alone; they necessitate a factual inquiry and possibly the production of supporting evidence.
12. Applying the principles in Mukisa Biscuit Case, [supra] to the present case, the Court finds that the objection raised by the defendant does not meet the threshold of a true preliminary objection whose nature and purpose is to summarily dispose of a matter purely on points of law without resorting to evidence.
Disposition
13. Accordingly, the preliminary objection is not sustainable and the same is dismissed. Costs shall be in the cause. It is so ordered.