(Being an appeal from a ruling of Hon. R. L. Musiega,dated 15.11.24.)
JUDGEMENT
By a plaint dated 21 st June 2024, the respondent sought compensation against the appellant for breach of contract. The respondent had pleaded that on various dates between the year 2015 and 2016, at the request of the appellant it offered building and construction services worth Ksh. 6,325,665 at House No 1 Eldama Ravine Road,Westlands within Nairobi County in Kenya. The respondent’s claim was that the appellant paid a sum of Ksh. 2,000,000 leaving a balance of Ksh. 4,325,665 due and owing.
On the 24 th July 2024, the appellant raised a preliminary objection on point of law on the ground that the plaintiff’s suit was barred by effluxion of time and that the court lacked jurisdiction to entertain the same.
The learned magistrate in her ruling dismissed the preliminary objection finding that the respondent had given sufficient explanation for delay in filing suit and the appellant was estopped from raising a preliminary objection.
Aggrieved by that ruling, the appellant filed this appeal. The grounds of appeal can be summarized as follows:
-That the learned magistrate erred in law and in fact in failing to consider the pleadings and find that the appellants preliminary objection was well grounded.
APPELLANT’S SUBMISSION
The appellant submitted that the respondent’s case filed before the magistrate’s court on the 21 st June 2024 and which was founded on a contract entered into between 2015 and 2016 was time barred. That the suit was filed more than 6 years contrary to the provisions of section 4(a) of the Limitation of Actions Act. The appellant submitted that the learned magistrate failed to consider that on the face of the pleadings, the suit was time barred. The appellant cited amongst others the case of Mohamed Salim Tweshe v Khalid Salim Naaman & 5 others (2020) eKLR.
The appellant further submitted that the learned magistrate erred in law in failing to appreciate that parties are bound by their pleadings. That the magistrate erred in law in relying on evidence placed before court through submissions. In support of this proposition, the appellant relied on the case of Equity Bank (K) Ltd v Wachira (2025) KEHC 16358 KLR and Raila Amolo Odinga v IEBC & 2 others (2017) eKLR and Ginono v Shah & 3 others (2025) KEHC 18115 KLR.
RESPONDENT’S SUBMISSION
The respondent submitted that the learned magistrate properly considered the appellant’s preliminary objection. That the preliminary objection was fundamentally incompetent from the onset because the question whether the cause of action was statute-barred depended heavily on disputed facts regarding ongoing negotiations and promises between the parties.
The respondent cited the case of Oraro v Mbaja (2005) KEHC 3182 KLR in support of its submissions that a preliminary objection should be confined to pure points of law which must not be blurred with factual details liable to be contested.
The respondent submitted that the appellant was estopped by his own conduct from raising the preliminary objection.
DETERMINATION
The duty of a first appellate court is to reconsider the evidence adduced before the trial court and reevaluate the same and draw its own conclusion. Bearing that duty, I must satisfy myself that the conclusion reached by the trial magistrate is consistent with the evidence and the law.
In the case of Oluoch Erick Gogo V Universal Corporation Ltd (2015) eKLR the court stated:
“As a first appellate court the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused in the court of appeal case of Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123, my duty is to evaluate and re-examine the evidence adduced at the trial court in order to reach a finding, taking in to account the fact that this court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect.”
From the record, this court should determine whether the learned magistrate correctly applied the law on preliminary objection and promissory estoppel while considering the material placed before her.
It is settled law that a preliminary objection is a pure point of law and it must not be raised where the court would need to examine the disputed facts. In the case of Oraro v Mbaja (2005) KEHC 3182 KLR the court stated:
“I think the principle is abundantly clear; A preliminary objection is correctly understood, is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its consideration, is not, as a matter of legal principle, a true preliminary objection which this court should allow to proceed…that where court needs to investigate facts, a matter cannot be raised, as a preliminary point. This legal principle is beyond dispute, as there are diverse weighty authorities carrying the message”
From the record, and in particular the plaint, the cause of action arose on or around 2015 and 2016. The suit was filed on 21st June 2024, far beyond six years within which an action founded on contract may be brought. The argument by the respondent that the time when the cause of action accrued was contested is far from being truthful. From the plaint which has not been amended and even the witness statement filed on record, the cause of action is said to have accrued on the 2015 or 2016. The plaintiff’s claim is grounded on a contract which arose in the year 2016, if we were to rely on the latest date. This was repeated in the witness statement filed by the respondent’s witness, one Jackson Undu Onyango. The learned magistrate in her ruling stated thus:
“1. From the pleadings before the court, the plaintiff does not dispute the fact that the cause of action which in the nature of breach of contract occurred between 2015 and 2016. The plaintiff proceeded to file their plaint on the 21.6.24 which is roughly 8 years after the fact.
2. It is the plaintiff’s submission that prior to the filing of the suit, the parties herein had at all times been in negotiations over the quoted price and as late as of 14.9.23, upon negotiations between the parties the plaintiff agreed to revise the initial quote…”
It is trite law that parties are bound by their own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made to their pleadings. In an adversarial system as ours, it is not the duty of the court to enter upon an inquiry about the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.
In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) eKLR Justice A.C. Mrima stated as doth:
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded”
The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another v IEBC & 2 others (2017) eKLR found and held as follows in an election petition:
“In absence of pleadings, evidence if any, produced by the parties cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.’’
The foregoing demonstrate that a court cannot act on evidence, even where it is established, in the absence of pleadings. In the instant case, the learned magistrate erred in law by putting reliance on alleged evidence placed before her through submissions. The said ‘evidence’ was at total variance with the pleadings and even the witness statement filed by the respondent. In any event, submissions cannot constitute evidence to be relied on in a hearing and the learned magistrate erred in alluding to promises which did not form part of the pleadings and the filed evidence. The finding that the doctrine of estoppel applied to circumstances of this case was erroneous.
The main ground of objection raised by the appellant was that the respondent’s suit against the appellant was statute barred for reasons that it offended the provisions of section 4 of the Limitation of Actions Act, Cap 22, Law of Kenya. Section 4 of the Limitation of Actions Act provides as follows:
“4(1) 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”
The cause of action is indicated from the plaint to have arisen in 2016. The suit was filed on 21.6.24 which is roughly 8 years after the cause of action accrued. The respondent’s suit was statute-barred and the learned magistrate ought to have found so.
In the upshot, I make the following orders:
(1) The ruling of the lower court dated 15.11.24 is set aside and substituted thereof with an order allowing the preliminary objection dated 24.7.24. The respondent’s suit be and is hereby struck out with costs to the appellant both before the lower court and this court.
DATED, SIGNED AND DELIVERED virtually THIS 8 th day of JULY 2026
D.O. ONYANGO.
JUDGE
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JUDGEMENT
By a plaint dated 21 st June 2024, the respondent sought compensation against the appellant for breach of contract. The respondent had pleaded that on various dates between the year 2015 and 2016, at the request of the appellant it offered building and construction services worth Ksh. 6,325,665 at House No 1 Eldama Ravine Road,Westlands within Nairobi County in Kenya. The respondent’s claim was that the appellant paid a sum of Ksh. 2,000,000 leaving a balance of Ksh. 4,325,665 due and owing.
On the 24 th July 2024, the appellant raised a preliminary objection on point of law on the ground that the plaintiff’s suit was barred by effluxion of time and that the court lacked jurisdiction to entertain the same.
The learned magistrate in her ruling dismissed the preliminary objection finding that the respondent had given sufficient explanation for delay in filing suit and the appellant was estopped from raising a preliminary objection.
Aggrieved by that ruling, the appellant filed this appeal. The grounds of appeal can be summarized as follows:
-That the learned magistrate erred in law and in fact in failing to consider the pleadings and find that the appellants preliminary objection was well grounded.
APPELLANT’S SUBMISSION
The appellant submitted that the respondent’s case filed before the magistrate’s court on the 21 st June 2024 and which was founded on a contract entered into between 2015 and 2016 was time barred. That the suit was filed more than 6 years contrary to the provisions of section 4(a) of the Limitation of Actions Act. The appellant submitted that the learned magistrate failed to consider that on the face of the pleadings, the suit was time barred. The appellant cited amongst others the case of Mohamed Salim Tweshe v Khalid Salim Naaman & 5 others (2020) eKLR.
The appellant further submitted that the learned magistrate erred in law in failing to appreciate that parties are bound by their pleadings. That the magistrate erred in law in relying on evidence placed before court through submissions. In support of this proposition, the appellant relied on the case of Equity Bank (K) Ltd v Wachira (2025) KEHC 16358 KLR and Raila Amolo Odinga v IEBC & 2 others (2017) eKLR and Ginono v Shah & 3 others (2025) KEHC 18115 KLR.
RESPONDENT’S SUBMISSION
The respondent submitted that the learned magistrate properly considered the appellant’s preliminary objection. That the preliminary objection was fundamentally incompetent from the onset because the question whether the cause of action was statute-barred depended heavily on disputed facts regarding ongoing negotiations and promises between the parties.
The respondent cited the case of Oraro v Mbaja (2005) KEHC 3182 KLR in support of its submissions that a preliminary objection should be confined to pure points of law which must not be blurred with factual details liable to be contested.
The respondent submitted that the appellant was estopped by his own conduct from raising the preliminary objection.
DETERMINATION
The duty of a first appellate court is to reconsider the evidence adduced before the trial court and reevaluate the same and draw its own conclusion. Bearing that duty, I must satisfy myself that the conclusion reached by the trial magistrate is consistent with the evidence and the law.
In the case of Oluoch Erick Gogo V Universal Corporation Ltd (2015) eKLR the court stated:
“As a first appellate court the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused in the court of appeal case of Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123, my duty is to evaluate and re-examine the evidence adduced at the trial court in order to reach a finding, taking in to account the fact that this court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect.”
From the record, this court should determine whether the learned magistrate correctly applied the law on preliminary objection and promissory estoppel while considering the material placed before her.
It is settled law that a preliminary objection is a pure point of law and it must not be raised where the court would need to examine the disputed facts. In the case of Oraro v Mbaja (2005) KEHC 3182 KLR the court stated:
“I think the principle is abundantly clear; A preliminary objection is correctly understood, is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its consideration, is not, as a matter of legal principle, a true preliminary objection which this court should allow to proceed…that where court needs to investigate facts, a matter cannot be raised, as a preliminary point. This legal principle is beyond dispute, as there are diverse weighty authorities carrying the message”
From the record, and in particular the plaint, the cause of action arose on or around 2015 and 2016. The suit was filed on 21st June 2024, far beyond six years within which an action founded on contract may be brought. The argument by the respondent that the time when the cause of action accrued was contested is far from being truthful. From the plaint which has not been amended and even the witness statement filed on record, the cause of action is said to have accrued on the 2015 or 2016. The plaintiff’s claim is grounded on a contract which arose in the year 2016, if we were to rely on the latest date. This was repeated in the witness statement filed by the respondent’s witness, one Jackson Undu Onyango. The learned magistrate in her ruling stated thus:
“1. From the pleadings before the court, the plaintiff does not dispute the fact that the cause of action which in the nature of breach of contract occurred between 2015 and 2016. The plaintiff proceeded to file their plaint on the 21.6.24 which is roughly 8 years after the fact.
2. It is the plaintiff’s submission that prior to the filing of the suit, the parties herein had at all times been in negotiations over the quoted price and as late as of 14.9.23, upon negotiations between the parties the plaintiff agreed to revise the initial quote…”
It is trite law that parties are bound by their own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made to their pleadings. In an adversarial system as ours, it is not the duty of the court to enter upon an inquiry about the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.
In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) eKLR Justice A.C. Mrima stated as doth:
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded”
The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another v IEBC & 2 others (2017) eKLR found and held as follows in an election petition:
“In absence of pleadings, evidence if any, produced by the parties cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.’’
The foregoing demonstrate that a court cannot act on evidence, even where it is established, in the absence of pleadings. In the instant case, the learned magistrate erred in law by putting reliance on alleged evidence placed before her through submissions. The said ‘evidence’ was at total variance with the pleadings and even the witness statement filed by the respondent. In any event, submissions cannot constitute evidence to be relied on in a hearing and the learned magistrate erred in alluding to promises which did not form part of the pleadings and the filed evidence. The finding that the doctrine of estoppel applied to circumstances of this case was erroneous.
The main ground of objection raised by the appellant was that the respondent’s suit against the appellant was statute barred for reasons that it offended the provisions of section 4 of the Limitation of Actions Act, Cap 22, Law of Kenya. Section 4 of the Limitation of Actions Act provides as follows:
“4(1) 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”
The cause of action is indicated from the plaint to have arisen in 2016. The suit was filed on 21.6.24 which is roughly 8 years after the cause of action accrued. The respondent’s suit was statute-barred and the learned magistrate ought to have found so.
In the upshot, I make the following orders:
(1) The ruling of the lower court dated 15.11.24 is set aside and substituted thereof with an order allowing the preliminary objection dated 24.7.24. The respondent’s suit be and is hereby struck out with costs to the appellant both before the lower court and this court.
DATED, SIGNED AND DELIVERED virtually THIS 8 th day of JULY 2026
D.O. ONYANGO.
JUDGE
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