1. Before this court for determination are the 7th Defendant’s Preliminary Objection dated 12th September 2025 and the Plaintiff’s Notice of Motion dated 25th November 2025.
2. The Preliminary Objection seeks an order striking out the Plaintiff’s suit against the 7th Defendant with costs on the grounds that the suit is statute/time barred and offends the provisions of Section 4, 19 (1), 26 and 27 of the Limitation of Action Cap 22 Laws of Kenya. The 7th Defendant further contends that there was no valid resolution authorizing the institution of these proceedings, the appointment of the firm of Robson Harris Advocates LLP to act on behalf of the Plaintiff, or the authorization of Kelvin Kimani to swear and sign the verifying affidavit accompanying the plaint. Consequently, it is argued that the suit offends the provision of the Companies Act 2015 and the company’s articles of association.
3. The Plaintiff’s application dated 25th November 2025 seeks that;
i. Leave be granted to the Plaintiff to file “without prejudice” documents to with, the letter dated 27th October 2022 as part of its evidence before the court.
ii. Court grant leave to the Plaintiff to file a further list and bundle of documents and a further witness statement.
4. The application is premised on the grounds set out on its face and is supported by the affidavit of Beline Ochiel, a Debt Recovery Officer of the Plaintiff. The crux of the application is that the 1st, 2nd and 3rd Defendants were advanced various credit facilities secured by legal charges over the properties known as Nginda/Samar/Block 1/211, Ruiru/Ruiru/East Block 7/102 and Ruiru/Ruiru/East Block 7/70. The Plaintiff avers that, at the borrowers’ request, the original titles were released to the 7th Defendant, who acted as their advocate, for purposes of subdivision and sale. The release was made on the strength of professional undertakings dated 21st April 2010 and 12th August 2010 under which the titles were to be returned upon completion of the intended transactions.
5. It is further averred that the 7th Defendant failed to honour the professional undertakings and instead released the titles to the borrowers, who subsequently disposed of the charged properties without the Plaintiff’s knowledge or consent. Consequently, the Plaintiff lodged disciplinary proceedings against the 7th Defendant before the Advocates Disciplinary Tribunal. Those proceedings culminated in a judgment delivered on 16th November 2020 in which the Tribunal found the 7th Defendant guilty of failing to honour the professional undertakings and of engaging in disgraceful and dishonourable professional conduct.
6. Following the Tribunal’s decision, it is alleged that the 7th Defendant approached the Plaintiff with a view to amicably resolving the dispute. However, despite expressing willingness to settle part of the outstanding liability arising from the breached undertaking, the 7th Defendant allegedly failed to honour the commitments made. This according to the Plaintiff, culminated in the filing the present suit recovery of Kshs 204, 612, 266/=.
7. The Plaintiff further states that although the 7th Defendant subsequently raised a preliminary objection contending that the suit is statute-barred, he failed to disclose that the parties remained engaged in settlement negotiations long after the Tribunal proceedings had concluded and that such negotiations continued up to the year 2024. According to the deponent, the 7th Defendant also failed to disclose that, through a letter dated 27th October 2022, he expressly acknowledged indebtedness to the Plaintiff in the sum of Kshs. 20,000,000/= and proposed to liquidate that amount as part of the debt arising from the breached undertaking.
8. The Plaintiff contends that the said letter constitutes an unequivocal admission of liability and is therefore not protected by the “without prejudice” rule, despite bearing that label. Accordingly, the Plaintiff seeks leave to place the impugned letter before the court together with additional documents.
9. In opposing the application, the 7th Defendant filed grounds of opposition dated 27th January 2026 and a Replying Affidavit sworn on even date. The substance of the Grounds of Opposition and the Replying Affidavit is substantially similar. The 7th Defendant contends that the application is fatally defective because the supporting affidavit was sworn by one Beline Ochiel, who allegedly lacked the requisite authority to depose on behalf of the Plaintiff.
10. He further avers that the deponent is not conversant with the facts of the matter, pointing in particular to the averment that the borrowers requested the release of the titles in 2013 through his law firm. According to the 7th Defendant, this assertion is factually incorrect and demonstrates that the deponent lacks personal knowledge of the events in question.
11. The 7th Defendant further opposes the application on the ground that the Plaintiff seeks to introduce into evidence a letter expressly marked "without prejudice", contrary to the well-established common law principle and section 23(1) of the Evidence Act, which protects communications made in the course of settlement negotiations from disclosure in civil proceedings.
12. The 7th Defendant also contends that the Plaintiff's reliance on alleged settlement negotiations is misconceived. He argues that the disciplinary proceedings instituted before the Advocates Disciplinary Tribunal in 2013 cannot, by themselves, amount to negotiations capable of suspending or extending the statutory limitation period. Further, he asserts that any discussions allegedly undertaken after the expiry of the limitation period could not revive an otherwise time-barred cause of action.
13. The 7th Defendant further avers that the Plaintiff never accepted the proposal contained in the letter dated 27th October 2022. According to him, an unaccepted offer cannot constitute a binding agreement and silence cannot amount to acceptance. He therefore disputes the Plaintiff's contention that he failed to honour an agreed settlement, maintaining that no enforceable agreement ever arose between the parties. He similarly denies having admitting liability and contends that the contents of the impugned letter merely to a settlement proposal which, by virtue of its "without prejudice" status, cannot be construed as an admission against his interest.
14. Additionally, the 7th Defendant contends that the judgment of the Advocates Disciplinary Tribunal did not order him to pay the Plaintiff the sum of Kshs. 204,612,266/= =. He therefore argues that the Plaintiff is improperly relying on the Tribunal's findings to pursue a monetary claim that was never determined in those proceedings.
15. the 7th Defendant further asserts that he was under no obligation to disclose any failed settlement negotiations and reiterates that all communications exchanged on a "without prejudice" basis remain privileged and inadmissible. In support of this contention, he relies on the decision in Geoloy Investments Ltd v Behal t/a Krishan Behal & Sons [2002] 2 KLR 447. Consequently, he urges the court to find that both the Notice of Motion and the suit are incompetent, misconceived, incurably defective and an abuse of the court process, and to dismiss them with costs.
16. Pursuant to the court’s directions of this court, the preliminary objection and the application were heard together by way of written submissions. The preliminary objection, the replying affidavit opposition to the Plaintiff’s application and its submissions dated 18th May 2026 are considered as opposing the application. The Plaintiff relied on its submissions dated 18th March 2026 which address both the preliminary objection and the present application.
17. I note that the 1st to 6th Defendant have never entered appearance in these proceedings. Consequently, an interlocutory judgment was entered against them on 15th September 2025.
Plaintiff’s submissions
18. The Plaintiff identified three issues for determination; whether the Notice of Motion dated 25th November 2025 is merited; whether the 7th Defendant’s Notice of Preliminary Objection dated 12th September 2025 is merited and who should bear the costs.
19. On its application, the plaintiff acknowledged the general inadmissibility of "without prejudice" communication under Section 23 of the Evidence Act but argued that the rule admits recognized exceptions which generally excludes communications from evidence. While submitting that the rule is not absolute and admits several well-recognised exceptions, the Plaintiff relied on Ongata Rongai Total Filing Station Limited versus Industrial and Commercial Development Corporation Nairobi (Milimani) HCCS No. 219 of 2007 OS and Heineken East Africa Imports Co. Ltd & Another v Maxim Ltd [2024] KECA 625 (KLR), to submit that the impugned letter dated 27th October 2022 should be admitted, not merely as evidence of liability, but to demonstrate that the parties were engaged in settlement negotiations and that the 7th Defendant had acknowledged indebtedness.
20. According to the Plaintiff, the correspondence forms part of a continuous chain of negotiations that extended until 2024 and is relevant to the determination of the limitation issue. The Plaintiff further contended that the letter amounted to an acknowledgement of indebtedness within the meaning of Sections 23 and 24 of the Limitation of Actions Act, thereby interrupting the limitation period. It maintained that the 7th Defendant's own pleadings acknowledge the existence of negotiations, further supporting its position that the correspondence should be admitted into evidence.
21. Regarding the Preliminary Objection, the Plaintiff argued that the suit is not statute barred. Citing Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Divecon Ltd v Samani (1995–1998) EA 48, as cited with approval in Langat v Co-operative Bank of Kenya Ltd (2017) eKLR, and Gathoni v Kenya Co-operative Creameries Ltd, Civil Application No. 122 of 1981, it submitted that the cause of action against the 7th Defendant crystallised upon the delivery of the Advocates Disciplinary Tribunal judgment on 16th November 2020, which found the 7th Defendant guilty of professional misconduct and breach of a professional undertaking. The Plaintiff maintained that disciplinary jurisdiction lay exclusively with the Tribunal and that it could only pursue its claim for financial loss after the Tribunal had determined the complaint. On that basis, it argued that the suit filed in July 2025 was instituted within time. The Plaintiff also emphasized that the Tribunal's findings have not been challenged or overturned.
22. On the issue of whether failure to produce authority to sue is fatal to the suit, the Plaintiff submitted that failure to file a corporate resolution or authority to sue is not fatal to the proceedings. Relying on Article 159(2)(a), (b) and (d) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act and the case of Private Development Co. Ltd v Rebecca Ngonyo, Samuel Kamau Macharia & Jackson Njenga Njoroge (Environment & Land Case 433 of 2017) [2018] KEHC 6129 (KLR), it argued that the objection raises a procedural issue incapable of defeating an otherwise competent claim.
23. On the issue of costs, the Plaintiff submitted that costs should follow the event pursuant to section 27 of the Civil Procedure Act and urges the court to dismiss the 7th Defendant's Preliminary Objection and allow the application with costs.
7th Defendant’s submissions
24. The 7th defendant confined his submissions to two issues, namely whether the suit against the 7th defendant is time barred under Section 4, 19 (1), 26 and 27 of the Limitation of Action Act and whether the Plaintiff’s Notice of Motion is competent.
25. On limitation, the 7th Defendant submitted that the Plaintiff's claim arises from an alleged breach of professional undertakings issued in 2010 and is therefore governed by Section 4(1)(a) of the Limitation of Actions Act. He argued that the cause of action accrued upon the alleged breach and that the Plaintiff acknowledged the breach as early as 2013 when it lodged disciplinary proceedings before the Advocates Disciplinary Tribunal. Consequently, he contended that the suit filed on 17th July 2025, approximately twelve years later, is time-barred.
26. Relying on YH Wholesalers Limited v Kenya Revenue Authority (2021) eKLR. and Thuranira Karauri v Agnes Ncheche [1997] eKLR, the 7th Defendant argued that limitation goes to jurisdiction and that a court cannot entertain a claim filed outside the statutory period. He further submitted that the disciplinary proceedings neither suspended nor extended time and that the Plaintiff neither sought nor obtained leave to institute the suit out of time.
27. He maintained that the Plaintiff remained inactive for approximately 12 years without any lawful justification, which delay he described as inordinate, inexcusable and incapable of being remedied through the exercise of judicial discretion. Consequently, he submitted that the suit, having been filed without prior leave after expiry of the statutory limitation period, is incompetent and liable to be struck out.
28. In opposing the application, the 7th Defendant first challenged the competence of the supporting affidavit, arguing that it was sworn by an unauthorized person on behalf of the Plaintiff company contrary to Order 4 Rule 1(4) of the Civil Procedure Rules, 2010.
29. He also contended that parts of the affidavit contained factual inaccuracies and should therefore be accord no probative value even if admitted. In support of these submissions, he relied on Don Woods Company Ltd v Chemusian Company Ltd [2004] KEHC 2694 (KLR).
30. The 7th Defendant also opposed the Plaintiff's attempt to rely on the letter dated 27th October 2022 arguing that it is expressly marked "without prejudice" and is therefore protected from disclosure by section 23(1) of the Evidence Act. Relying on Geology Investments Ltd v Behal t/a Krishan Behal & Sons [2002] 2 KLR 447, he submitted that the privilege exists to encourage candid settlement negotiations and that the impugned letter is inadmissible.
31. Further, the 7th Defendant denied that the letter amounted to an acknowledgement of liability. He maintained that it merely constituted an unaccepted proposal made in the course of settlement discussions and did not give rise to any binding agreement. He also disputed the Plaintiff’s assertion that negotiations continued until 2024 and argued that no evidence had been produced to support that claim. In support of this argument, he relied on KSC International Limited (Under Receivership) & 4 Others v Bank of Africa (Kenya) Limited & 7 Others (Civil Case No. 446 of 2015) [2023] KEHC 24298 (KLR).
32. Lastly, the 7th Defendant contended that neither the impugned correspondence nor the Tribunal's decision could revive a cause of action already extinguished by limitation. Relying on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR, he submitted that Article 159 of the Constitution cannot be invoked to cure substantive statutory defects. He therefore urged the Court to strike out both the Plaintiff's application and the suit with costs.
Analysis and Determination
33. I have carefully considered the Plaintiff's Notice of Motion dated 25th November 2025, the supporting affidavit and annexures thereto, the 7th Defendant's Preliminary Objection dated 12th September 2025, the replying affidavit in opposition thereto, and the parties' respective written submissions. In my view, the following issues arise for determination
i. Whether the Plaintiff should be granted leave to produce the letter dated 27th October 2022 together with the further list and bundle of documents and the further witness statement.
ii. Whether the Plaintiff's suit against the 7th Defendant is statute barred.
iii. Whether the Plaintiff's application is incompetent for want of authority by the deponent to swear the supporting affidavit on behalf of the Plaintiff.
Whether the Plaintiff should be granted leave to produce the letter dated 27th October 2022 together with the further list and bundle of documents and the further witness statement.
34. The Plaintiff seeks leave to produce, as part of its evidence, a letter dated 27th October 2022 marked "Without Prejudice", together with a further list and bundle of documents and a further witness statement. The Plaintiff contends that although the impugned letter bears the heading "Without Prejudice", it falls within the recognised exceptions to the without prejudice rule. According to the Plaintiff, the correspondence demonstrates that after the Advocates Disciplinary Tribunal rendered its judgment on 16th November 2020, the parties remained engaged in settlement negotiations until 2024, during which period the 7th Defendant expressly acknowledged liability by offering to pay Kshs.20,000,000/= towards the debt arising from the breach of his professional undertaking. The Plaintiff therefore argues that the correspondence is not being produced merely to prove liability but rather to demonstrate the existence and continuity of negotiations, the acknowledgment of indebtedness and its effect on limitation of actions.
35. The 7th Defendant opposes the application. His position is that the impugned correspondence is privileged under Section 23(1) of the Evidence Act and is therefore inadmissible. He contends that the letter merely constituted a settlement proposal which was never accepted by the Plaintiff and consequently did not culminate in a binding agreement. He further argues that the Plaintiff cannot rely on privileged communications to circumvent the law on limitation of actions or revive a cause of action that is otherwise statute-barred.
36. This issue requires the Court to examine the scope and application of the "without prejudice" doctrine, the recognised exceptions thereto, and whether the impugned correspondence falls within any of those exceptions so as to warrant its admission into evidence. The phrase "without prejudice" has acquired a settled legal meaning both at common law and in our jurisprudence. It embodies a rule of public policy intended to encourage parties to freely negotiate and settle disputes without apprehension that any concessions, admissions or offers made during negotiations may subsequently be relied upon against them should the negotiations fail. The rule therefore promotes amicable settlement of disputes which remains one of the overriding objectives of civil litigation.
37. The rule is codified under Section 23 of the Evidence Act, which provides:
23. Admissions made without prejudice in civil cases.
(1)In civil cases no admission may be proved if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.
(2)Nothing in subsection (1) of this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under section 134 of this Act.
38. The effect of Section 23 is that communications exchanged on a "without prejudice" basis in the course of genuine settlement negotiations are generally inadmissible as evidence against the maker thereof. The privilege serves the important public policy objective of encouraging candour and flexibility in settlement negotiations by insulating parties from the risk that concessions made during negotiations may later be deployed against them in litigation.
39. The protection, however, is not accorded merely because the words "without prejudice" appear on the document. Rather, a court must consider the substance of the communication and the purpose for which it is sought to be produced. The rationale behind the rule was succinctly explained by Mwera J. in Geology Investments Ltd v Behal t/a Krishan Behal & Sons [2002] 2 KLR 447, where the learned Judge relied on the court’s interpretation of without prejudice in the case of Cooperative Bank of Kenya Ltd v Shiraz Sayani MBA HCCC 23/99 where the court remarked that:
“……………..The rubric “without prejudice” has been used over ages particularly in correspondence between counsel for litigating parties to facilitate free and uninhibated negotiations to explore settlements of dispute. Until such time as there is definite (sic) agreement on the issues at hand, such correspondence cannot be used as evidence against any of the parties. As I understand it, the rubric simply means “I make you an offer, if you do not accept it, this letter is not to be used against me. Or I make you an offer which you may accept or not, as you like, but if you do not accept it, my having made it, is to have no effect at all.” It is a privilege that is jealously guarded by the courts otherwise parties and their legal advisers would find it difficult to narrow down issues in dispute or to reach out of court settlements.”
40. The above decision therefore illustrates that the privilege exists to protect unsuccessful settlement negotiations from later being weaponised in litigation. However, it is equally settled that the without prejudice rule is not absolute. The Court of Appeal in the case of Heineken East Africa Import Company Ltd & another v Maxam Ltd (Civil Appeal E403 & E404 of 2020 (Consolidated)) [2024] KECA 625 (KLR) (24 May 2024) (Judgment) held that;
“……………..It is notable that the contents of a communication made "without prejudice" are only admissible in certain exceptional circumstances, including when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached and to the fact that such communications have been made is also admissible to show that negotiations have taken place, but not is contents, which are otherwise not admissible. ………………...”
41. The Plaintiff has also relied on Ongata Rongai Total Filling Station Limited v Industrial and Commercial Development Corporation, HCCC No. 219 of 2007 (OS), as cited with approval in Terry Wanjiru Kariuki v Equity Bank Limited & Another [2012] KEHC 4296 (KLR), for the proposition that the Court is entitled, in appropriate circumstances, to look beyond the "without prejudice" label where justice demands and where the communication is relied upon for a purpose falling within the recognised exceptions.
42. Applying the foregoing principles to the present case, it is evident that the Plaintiff does not seek to rely upon the impugned correspondence for purposes of enforcing a concluded settlement agreement. Rather, the Plaintiff's contention is that the correspondence evidences continuing negotiations between the parties following the decision of the Advocates Disciplinary Tribunal delivered on 16th November 2020 and further demonstrates an acknowledgment of liability by the 7th Defendant. The Plaintiff's position is that the legal significance of the correspondence lies not in the settlement proposal itself, but in its potential effect on the computation of limitation periods under the Limitation of Actions Act.
43. I have carefully examined the impugned letter. Although the letter is expressly marked "Without Prejudice", this court is nonetheless required to examine its contents in order to determine whether the Plaintiff has established sufficient grounds for seeking leave to produce it under one of the recognised exceptions to the without prejudice rule.
44. The letter itself does not expressly admit liability for the Plaintiff's claim nor does it refer to the findings of the Advocates Disciplinary Tribunal. Rather, it refers to "the various meetings held between the writer and representatives of the bank" before stating that "Pursuant to the said meetings we now offer to liquidate a portion of the debt owed by Joseph Mburu Muigai to the tune of Kshs.20,000,000/= so that we be discharged from our undertaking." The letter further proposes that the said amount be settled over a period of 15 years by charging two properties in Dagoretti Mutuini and concludes by expressing the writer's expectation of receiving the Bank's favourable response to enable perfection of the proposed security.
45. While couched as a settlement proposal, the language employed in the letter is capable of giving rise to competing interpretations. On the one hand, it may be viewed as a mere attempt to compromise a disputed claim. On the other hand, the reference to liquidating a portion of the debt and the proposal for structured payment may arguably amount to conduct consistent with acknowledgment of an existing obligation. The ultimate determination of that question can only be made after a full consideration of the evidence and applicable law.
46. It is this communication that the Plaintiff contends constitutes evidence of continuing negotiations and an acknowledgment capable of affecting the computation of time under the Limitation of Actions Act. Conversely, the 7th Defendant maintains that the letter is no more than an unaccepted settlement proposal protected by the without prejudice privilege. Whether the letter constitutes a valid acknowledgment of liability within the meaning of the Limitation of Actions Act, or whether it remains an inadmissible settlement communication protected by Section 23 of the Evidence Act, is a substantive issue requiring detailed evaluation. Such determination cannot properly be made at this interlocutory stage
47. Further, I note that the Plaintiff has annexed not only the letter dated 27th October 2022 but also additional correspondence which, according to the Plaintiff, demonstrates that discussions between the parties did not terminate with that letter. Whether those documents ultimately establish continuing negotiations or an acknowledgment capable of extending or restarting time under the Limitation of Actions Act is a matter that goes to the evidential weight and legal effect of the documents rather than to their admissibility at this stage.
48. Accordingly, I am satisfied that the Plaintiff has laid a sufficient basis for the Court to exercise its discretion in favour of granting leave to file the impugned letter dated 27th October 2022 together with the further list and bundle of documents and the further witness statement. Granting such leave does not amount to a finding that the contents of the correspondence constitute an admission of liability, a binding settlement agreement or an acknowledgment within the meaning of the Limitation of Actions Act. Those are substantive issues that shall be determined upon considering the Preliminary Objection and the merits of the parties' respective positions. The order granting leave merely permits the documents to form part of the record for purposes of enabling the Court to determine the issues in controversy on the basis of all the relevant material before it.
49. Consequently, I find that the Plaintiff's Notice of Motion dated 25th November 2025 is merited and leave is hereby granted to the Plaintiff to file the letter dated 27th October 2022 marked "Without Prejudice", together with the further list and bundle of documents and the further witness statement, upon payment of the requisite court fees, if any.
Whether the Plaintiff's suit against the 7th Defendant is statute barred and consequently whether the Preliminary Objection dated 12th September 2025 is merited.
50. The 7th Defendant's Preliminary Objection is principally anchored on the contention that the Plaintiff's suit is statute-barred under Sections 4, 19, 26 and 27 of the Limitation of Actions Act. According to the 7th Defendant, the professional undertaking having been breached in or about the year 2013, the Plaintiff's cause of action accrued at that point and the suit instituted in July 2025 was therefore filed long after the expiry of the 6-year limitation period.
51. The Plaintiff disputes that contention. It maintains that following the decision of the Advocates Disciplinary Tribunal delivered on 16th November 2020, the parties entered into settlement negotiations which continued until 2024. It further contends that the letter dated 27th October 2022 together with the subsequent correspondence constituted an acknowledgment of indebtedness capable of affecting the computation of time under the Limitation of Actions Act.
52. Having admitted the impugned correspondence into the record for purposes of consideration, it becomes apparent that the determination of the limitation issue is inextricably linked to disputed factual matters. The Court cannot determine whether time was interrupted, extended or recommenced without first considering the nature, context and legal effect of the correspondence exchanged between the parties.
53. The Plaintiff maintains that the correspondence constituted an acknowledgment of indebtedness and formed part of continuing settlement negotiations extending into 2024. The 7th Defendant disputes that characterization and contends that the communications were nothing more than privileged settlement proposals incapable of affecting limitation periods. Resolution of these competing positions necessarily requires an examination of evidence and factual findings.
54. It is trite law that a preliminary objection must raise a pure point of law. As was stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a preliminary objection cannot be sustained where the Court is required to ascertain contested facts or exercise judicial discretion.
55. In the present case, the Court would be required to interrogate the contents of the correspondence, the surrounding circumstances in which it was exchang
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2. The Preliminary Objection seeks an order striking out the Plaintiff’s suit against the 7th Defendant with costs on the grounds that the suit is statute/time barred and offends the provisions of Section 4, 19 (1), 26 and 27 of the Limitation of Action Cap 22 Laws of Kenya. The 7th Defendant further contends that there was no valid resolution authorizing the institution of these proceedings, the appointment of the firm of Robson Harris Advocates LLP to act on behalf of the Plaintiff, or the authorization of Kelvin Kimani to swear and sign the verifying affidavit accompanying the plaint. Consequently, it is argued that the suit offends the provision of the Companies Act 2015 and the company’s articles of association.
3. The Plaintiff’s application dated 25th November 2025 seeks that;
i. Leave be granted to the Plaintiff to file “without prejudice” documents to with, the letter dated 27th October 2022 as part of its evidence before the court.
ii. Court grant leave to the Plaintiff to file a further list and bundle of documents and a further witness statement.
4. The application is premised on the grounds set out on its face and is supported by the affidavit of Beline Ochiel, a Debt Recovery Officer of the Plaintiff. The crux of the application is that the 1st, 2nd and 3rd Defendants were advanced various credit facilities secured by legal charges over the properties known as Nginda/Samar/Block 1/211, Ruiru/Ruiru/East Block 7/102 and Ruiru/Ruiru/East Block 7/70. The Plaintiff avers that, at the borrowers’ request, the original titles were released to the 7th Defendant, who acted as their advocate, for purposes of subdivision and sale. The release was made on the strength of professional undertakings dated 21st April 2010 and 12th August 2010 under which the titles were to be returned upon completion of the intended transactions.
5. It is further averred that the 7th Defendant failed to honour the professional undertakings and instead released the titles to the borrowers, who subsequently disposed of the charged properties without the Plaintiff’s knowledge or consent. Consequently, the Plaintiff lodged disciplinary proceedings against the 7th Defendant before the Advocates Disciplinary Tribunal. Those proceedings culminated in a judgment delivered on 16th November 2020 in which the Tribunal found the 7th Defendant guilty of failing to honour the professional undertakings and of engaging in disgraceful and dishonourable professional conduct.
6. Following the Tribunal’s decision, it is alleged that the 7th Defendant approached the Plaintiff with a view to amicably resolving the dispute. However, despite expressing willingness to settle part of the outstanding liability arising from the breached undertaking, the 7th Defendant allegedly failed to honour the commitments made. This according to the Plaintiff, culminated in the filing the present suit recovery of Kshs 204, 612, 266/=.
7. The Plaintiff further states that although the 7th Defendant subsequently raised a preliminary objection contending that the suit is statute-barred, he failed to disclose that the parties remained engaged in settlement negotiations long after the Tribunal proceedings had concluded and that such negotiations continued up to the year 2024. According to the deponent, the 7th Defendant also failed to disclose that, through a letter dated 27th October 2022, he expressly acknowledged indebtedness to the Plaintiff in the sum of Kshs. 20,000,000/= and proposed to liquidate that amount as part of the debt arising from the breached undertaking.
8. The Plaintiff contends that the said letter constitutes an unequivocal admission of liability and is therefore not protected by the “without prejudice” rule, despite bearing that label. Accordingly, the Plaintiff seeks leave to place the impugned letter before the court together with additional documents.
9. In opposing the application, the 7th Defendant filed grounds of opposition dated 27th January 2026 and a Replying Affidavit sworn on even date. The substance of the Grounds of Opposition and the Replying Affidavit is substantially similar. The 7th Defendant contends that the application is fatally defective because the supporting affidavit was sworn by one Beline Ochiel, who allegedly lacked the requisite authority to depose on behalf of the Plaintiff.
10. He further avers that the deponent is not conversant with the facts of the matter, pointing in particular to the averment that the borrowers requested the release of the titles in 2013 through his law firm. According to the 7th Defendant, this assertion is factually incorrect and demonstrates that the deponent lacks personal knowledge of the events in question.
11. The 7th Defendant further opposes the application on the ground that the Plaintiff seeks to introduce into evidence a letter expressly marked "without prejudice", contrary to the well-established common law principle and section 23(1) of the Evidence Act, which protects communications made in the course of settlement negotiations from disclosure in civil proceedings.
12. The 7th Defendant also contends that the Plaintiff's reliance on alleged settlement negotiations is misconceived. He argues that the disciplinary proceedings instituted before the Advocates Disciplinary Tribunal in 2013 cannot, by themselves, amount to negotiations capable of suspending or extending the statutory limitation period. Further, he asserts that any discussions allegedly undertaken after the expiry of the limitation period could not revive an otherwise time-barred cause of action.
13. The 7th Defendant further avers that the Plaintiff never accepted the proposal contained in the letter dated 27th October 2022. According to him, an unaccepted offer cannot constitute a binding agreement and silence cannot amount to acceptance. He therefore disputes the Plaintiff's contention that he failed to honour an agreed settlement, maintaining that no enforceable agreement ever arose between the parties. He similarly denies having admitting liability and contends that the contents of the impugned letter merely to a settlement proposal which, by virtue of its "without prejudice" status, cannot be construed as an admission against his interest.
14. Additionally, the 7th Defendant contends that the judgment of the Advocates Disciplinary Tribunal did not order him to pay the Plaintiff the sum of Kshs. 204,612,266/= =. He therefore argues that the Plaintiff is improperly relying on the Tribunal's findings to pursue a monetary claim that was never determined in those proceedings.
15. the 7th Defendant further asserts that he was under no obligation to disclose any failed settlement negotiations and reiterates that all communications exchanged on a "without prejudice" basis remain privileged and inadmissible. In support of this contention, he relies on the decision in Geoloy Investments Ltd v Behal t/a Krishan Behal & Sons [2002] 2 KLR 447. Consequently, he urges the court to find that both the Notice of Motion and the suit are incompetent, misconceived, incurably defective and an abuse of the court process, and to dismiss them with costs.
16. Pursuant to the court’s directions of this court, the preliminary objection and the application were heard together by way of written submissions. The preliminary objection, the replying affidavit opposition to the Plaintiff’s application and its submissions dated 18th May 2026 are considered as opposing the application. The Plaintiff relied on its submissions dated 18th March 2026 which address both the preliminary objection and the present application.
17. I note that the 1st to 6th Defendant have never entered appearance in these proceedings. Consequently, an interlocutory judgment was entered against them on 15th September 2025.
Plaintiff’s submissions
18. The Plaintiff identified three issues for determination; whether the Notice of Motion dated 25th November 2025 is merited; whether the 7th Defendant’s Notice of Preliminary Objection dated 12th September 2025 is merited and who should bear the costs.
19. On its application, the plaintiff acknowledged the general inadmissibility of "without prejudice" communication under Section 23 of the Evidence Act but argued that the rule admits recognized exceptions which generally excludes communications from evidence. While submitting that the rule is not absolute and admits several well-recognised exceptions, the Plaintiff relied on Ongata Rongai Total Filing Station Limited versus Industrial and Commercial Development Corporation Nairobi (Milimani) HCCS No. 219 of 2007 OS and Heineken East Africa Imports Co. Ltd & Another v Maxim Ltd [2024] KECA 625 (KLR), to submit that the impugned letter dated 27th October 2022 should be admitted, not merely as evidence of liability, but to demonstrate that the parties were engaged in settlement negotiations and that the 7th Defendant had acknowledged indebtedness.
20. According to the Plaintiff, the correspondence forms part of a continuous chain of negotiations that extended until 2024 and is relevant to the determination of the limitation issue. The Plaintiff further contended that the letter amounted to an acknowledgement of indebtedness within the meaning of Sections 23 and 24 of the Limitation of Actions Act, thereby interrupting the limitation period. It maintained that the 7th Defendant's own pleadings acknowledge the existence of negotiations, further supporting its position that the correspondence should be admitted into evidence.
21. Regarding the Preliminary Objection, the Plaintiff argued that the suit is not statute barred. Citing Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Divecon Ltd v Samani (1995–1998) EA 48, as cited with approval in Langat v Co-operative Bank of Kenya Ltd (2017) eKLR, and Gathoni v Kenya Co-operative Creameries Ltd, Civil Application No. 122 of 1981, it submitted that the cause of action against the 7th Defendant crystallised upon the delivery of the Advocates Disciplinary Tribunal judgment on 16th November 2020, which found the 7th Defendant guilty of professional misconduct and breach of a professional undertaking. The Plaintiff maintained that disciplinary jurisdiction lay exclusively with the Tribunal and that it could only pursue its claim for financial loss after the Tribunal had determined the complaint. On that basis, it argued that the suit filed in July 2025 was instituted within time. The Plaintiff also emphasized that the Tribunal's findings have not been challenged or overturned.
22. On the issue of whether failure to produce authority to sue is fatal to the suit, the Plaintiff submitted that failure to file a corporate resolution or authority to sue is not fatal to the proceedings. Relying on Article 159(2)(a), (b) and (d) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act and the case of Private Development Co. Ltd v Rebecca Ngonyo, Samuel Kamau Macharia & Jackson Njenga Njoroge (Environment & Land Case 433 of 2017) [2018] KEHC 6129 (KLR), it argued that the objection raises a procedural issue incapable of defeating an otherwise competent claim.
23. On the issue of costs, the Plaintiff submitted that costs should follow the event pursuant to section 27 of the Civil Procedure Act and urges the court to dismiss the 7th Defendant's Preliminary Objection and allow the application with costs.
7th Defendant’s submissions
24. The 7th defendant confined his submissions to two issues, namely whether the suit against the 7th defendant is time barred under Section 4, 19 (1), 26 and 27 of the Limitation of Action Act and whether the Plaintiff’s Notice of Motion is competent.
25. On limitation, the 7th Defendant submitted that the Plaintiff's claim arises from an alleged breach of professional undertakings issued in 2010 and is therefore governed by Section 4(1)(a) of the Limitation of Actions Act. He argued that the cause of action accrued upon the alleged breach and that the Plaintiff acknowledged the breach as early as 2013 when it lodged disciplinary proceedings before the Advocates Disciplinary Tribunal. Consequently, he contended that the suit filed on 17th July 2025, approximately twelve years later, is time-barred.
26. Relying on YH Wholesalers Limited v Kenya Revenue Authority (2021) eKLR. and Thuranira Karauri v Agnes Ncheche [1997] eKLR, the 7th Defendant argued that limitation goes to jurisdiction and that a court cannot entertain a claim filed outside the statutory period. He further submitted that the disciplinary proceedings neither suspended nor extended time and that the Plaintiff neither sought nor obtained leave to institute the suit out of time.
27. He maintained that the Plaintiff remained inactive for approximately 12 years without any lawful justification, which delay he described as inordinate, inexcusable and incapable of being remedied through the exercise of judicial discretion. Consequently, he submitted that the suit, having been filed without prior leave after expiry of the statutory limitation period, is incompetent and liable to be struck out.
28. In opposing the application, the 7th Defendant first challenged the competence of the supporting affidavit, arguing that it was sworn by an unauthorized person on behalf of the Plaintiff company contrary to Order 4 Rule 1(4) of the Civil Procedure Rules, 2010.
29. He also contended that parts of the affidavit contained factual inaccuracies and should therefore be accord no probative value even if admitted. In support of these submissions, he relied on Don Woods Company Ltd v Chemusian Company Ltd [2004] KEHC 2694 (KLR).
30. The 7th Defendant also opposed the Plaintiff's attempt to rely on the letter dated 27th October 2022 arguing that it is expressly marked "without prejudice" and is therefore protected from disclosure by section 23(1) of the Evidence Act. Relying on Geology Investments Ltd v Behal t/a Krishan Behal & Sons [2002] 2 KLR 447, he submitted that the privilege exists to encourage candid settlement negotiations and that the impugned letter is inadmissible.
31. Further, the 7th Defendant denied that the letter amounted to an acknowledgement of liability. He maintained that it merely constituted an unaccepted proposal made in the course of settlement discussions and did not give rise to any binding agreement. He also disputed the Plaintiff’s assertion that negotiations continued until 2024 and argued that no evidence had been produced to support that claim. In support of this argument, he relied on KSC International Limited (Under Receivership) & 4 Others v Bank of Africa (Kenya) Limited & 7 Others (Civil Case No. 446 of 2015) [2023] KEHC 24298 (KLR).
32. Lastly, the 7th Defendant contended that neither the impugned correspondence nor the Tribunal's decision could revive a cause of action already extinguished by limitation. Relying on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR, he submitted that Article 159 of the Constitution cannot be invoked to cure substantive statutory defects. He therefore urged the Court to strike out both the Plaintiff's application and the suit with costs.
Analysis and Determination
33. I have carefully considered the Plaintiff's Notice of Motion dated 25th November 2025, the supporting affidavit and annexures thereto, the 7th Defendant's Preliminary Objection dated 12th September 2025, the replying affidavit in opposition thereto, and the parties' respective written submissions. In my view, the following issues arise for determination
i. Whether the Plaintiff should be granted leave to produce the letter dated 27th October 2022 together with the further list and bundle of documents and the further witness statement.
ii. Whether the Plaintiff's suit against the 7th Defendant is statute barred.
iii. Whether the Plaintiff's application is incompetent for want of authority by the deponent to swear the supporting affidavit on behalf of the Plaintiff.
Whether the Plaintiff should be granted leave to produce the letter dated 27th October 2022 together with the further list and bundle of documents and the further witness statement.
34. The Plaintiff seeks leave to produce, as part of its evidence, a letter dated 27th October 2022 marked "Without Prejudice", together with a further list and bundle of documents and a further witness statement. The Plaintiff contends that although the impugned letter bears the heading "Without Prejudice", it falls within the recognised exceptions to the without prejudice rule. According to the Plaintiff, the correspondence demonstrates that after the Advocates Disciplinary Tribunal rendered its judgment on 16th November 2020, the parties remained engaged in settlement negotiations until 2024, during which period the 7th Defendant expressly acknowledged liability by offering to pay Kshs.20,000,000/= towards the debt arising from the breach of his professional undertaking. The Plaintiff therefore argues that the correspondence is not being produced merely to prove liability but rather to demonstrate the existence and continuity of negotiations, the acknowledgment of indebtedness and its effect on limitation of actions.
35. The 7th Defendant opposes the application. His position is that the impugned correspondence is privileged under Section 23(1) of the Evidence Act and is therefore inadmissible. He contends that the letter merely constituted a settlement proposal which was never accepted by the Plaintiff and consequently did not culminate in a binding agreement. He further argues that the Plaintiff cannot rely on privileged communications to circumvent the law on limitation of actions or revive a cause of action that is otherwise statute-barred.
36. This issue requires the Court to examine the scope and application of the "without prejudice" doctrine, the recognised exceptions thereto, and whether the impugned correspondence falls within any of those exceptions so as to warrant its admission into evidence. The phrase "without prejudice" has acquired a settled legal meaning both at common law and in our jurisprudence. It embodies a rule of public policy intended to encourage parties to freely negotiate and settle disputes without apprehension that any concessions, admissions or offers made during negotiations may subsequently be relied upon against them should the negotiations fail. The rule therefore promotes amicable settlement of disputes which remains one of the overriding objectives of civil litigation.
37. The rule is codified under Section 23 of the Evidence Act, which provides:
23. Admissions made without prejudice in civil cases.
(1)In civil cases no admission may be proved if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.
(2)Nothing in subsection (1) of this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under section 134 of this Act.
38. The effect of Section 23 is that communications exchanged on a "without prejudice" basis in the course of genuine settlement negotiations are generally inadmissible as evidence against the maker thereof. The privilege serves the important public policy objective of encouraging candour and flexibility in settlement negotiations by insulating parties from the risk that concessions made during negotiations may later be deployed against them in litigation.
39. The protection, however, is not accorded merely because the words "without prejudice" appear on the document. Rather, a court must consider the substance of the communication and the purpose for which it is sought to be produced. The rationale behind the rule was succinctly explained by Mwera J. in Geology Investments Ltd v Behal t/a Krishan Behal & Sons [2002] 2 KLR 447, where the learned Judge relied on the court’s interpretation of without prejudice in the case of Cooperative Bank of Kenya Ltd v Shiraz Sayani MBA HCCC 23/99 where the court remarked that:
“……………..The rubric “without prejudice” has been used over ages particularly in correspondence between counsel for litigating parties to facilitate free and uninhibated negotiations to explore settlements of dispute. Until such time as there is definite (sic) agreement on the issues at hand, such correspondence cannot be used as evidence against any of the parties. As I understand it, the rubric simply means “I make you an offer, if you do not accept it, this letter is not to be used against me. Or I make you an offer which you may accept or not, as you like, but if you do not accept it, my having made it, is to have no effect at all.” It is a privilege that is jealously guarded by the courts otherwise parties and their legal advisers would find it difficult to narrow down issues in dispute or to reach out of court settlements.”
40. The above decision therefore illustrates that the privilege exists to protect unsuccessful settlement negotiations from later being weaponised in litigation. However, it is equally settled that the without prejudice rule is not absolute. The Court of Appeal in the case of Heineken East Africa Import Company Ltd & another v Maxam Ltd (Civil Appeal E403 & E404 of 2020 (Consolidated)) [2024] KECA 625 (KLR) (24 May 2024) (Judgment) held that;
“……………..It is notable that the contents of a communication made "without prejudice" are only admissible in certain exceptional circumstances, including when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached and to the fact that such communications have been made is also admissible to show that negotiations have taken place, but not is contents, which are otherwise not admissible. ………………...”
41. The Plaintiff has also relied on Ongata Rongai Total Filling Station Limited v Industrial and Commercial Development Corporation, HCCC No. 219 of 2007 (OS), as cited with approval in Terry Wanjiru Kariuki v Equity Bank Limited & Another [2012] KEHC 4296 (KLR), for the proposition that the Court is entitled, in appropriate circumstances, to look beyond the "without prejudice" label where justice demands and where the communication is relied upon for a purpose falling within the recognised exceptions.
42. Applying the foregoing principles to the present case, it is evident that the Plaintiff does not seek to rely upon the impugned correspondence for purposes of enforcing a concluded settlement agreement. Rather, the Plaintiff's contention is that the correspondence evidences continuing negotiations between the parties following the decision of the Advocates Disciplinary Tribunal delivered on 16th November 2020 and further demonstrates an acknowledgment of liability by the 7th Defendant. The Plaintiff's position is that the legal significance of the correspondence lies not in the settlement proposal itself, but in its potential effect on the computation of limitation periods under the Limitation of Actions Act.
43. I have carefully examined the impugned letter. Although the letter is expressly marked "Without Prejudice", this court is nonetheless required to examine its contents in order to determine whether the Plaintiff has established sufficient grounds for seeking leave to produce it under one of the recognised exceptions to the without prejudice rule.
44. The letter itself does not expressly admit liability for the Plaintiff's claim nor does it refer to the findings of the Advocates Disciplinary Tribunal. Rather, it refers to "the various meetings held between the writer and representatives of the bank" before stating that "Pursuant to the said meetings we now offer to liquidate a portion of the debt owed by Joseph Mburu Muigai to the tune of Kshs.20,000,000/= so that we be discharged from our undertaking." The letter further proposes that the said amount be settled over a period of 15 years by charging two properties in Dagoretti Mutuini and concludes by expressing the writer's expectation of receiving the Bank's favourable response to enable perfection of the proposed security.
45. While couched as a settlement proposal, the language employed in the letter is capable of giving rise to competing interpretations. On the one hand, it may be viewed as a mere attempt to compromise a disputed claim. On the other hand, the reference to liquidating a portion of the debt and the proposal for structured payment may arguably amount to conduct consistent with acknowledgment of an existing obligation. The ultimate determination of that question can only be made after a full consideration of the evidence and applicable law.
46. It is this communication that the Plaintiff contends constitutes evidence of continuing negotiations and an acknowledgment capable of affecting the computation of time under the Limitation of Actions Act. Conversely, the 7th Defendant maintains that the letter is no more than an unaccepted settlement proposal protected by the without prejudice privilege. Whether the letter constitutes a valid acknowledgment of liability within the meaning of the Limitation of Actions Act, or whether it remains an inadmissible settlement communication protected by Section 23 of the Evidence Act, is a substantive issue requiring detailed evaluation. Such determination cannot properly be made at this interlocutory stage
47. Further, I note that the Plaintiff has annexed not only the letter dated 27th October 2022 but also additional correspondence which, according to the Plaintiff, demonstrates that discussions between the parties did not terminate with that letter. Whether those documents ultimately establish continuing negotiations or an acknowledgment capable of extending or restarting time under the Limitation of Actions Act is a matter that goes to the evidential weight and legal effect of the documents rather than to their admissibility at this stage.
48. Accordingly, I am satisfied that the Plaintiff has laid a sufficient basis for the Court to exercise its discretion in favour of granting leave to file the impugned letter dated 27th October 2022 together with the further list and bundle of documents and the further witness statement. Granting such leave does not amount to a finding that the contents of the correspondence constitute an admission of liability, a binding settlement agreement or an acknowledgment within the meaning of the Limitation of Actions Act. Those are substantive issues that shall be determined upon considering the Preliminary Objection and the merits of the parties' respective positions. The order granting leave merely permits the documents to form part of the record for purposes of enabling the Court to determine the issues in controversy on the basis of all the relevant material before it.
49. Consequently, I find that the Plaintiff's Notice of Motion dated 25th November 2025 is merited and leave is hereby granted to the Plaintiff to file the letter dated 27th October 2022 marked "Without Prejudice", together with the further list and bundle of documents and the further witness statement, upon payment of the requisite court fees, if any.
Whether the Plaintiff's suit against the 7th Defendant is statute barred and consequently whether the Preliminary Objection dated 12th September 2025 is merited.
50. The 7th Defendant's Preliminary Objection is principally anchored on the contention that the Plaintiff's suit is statute-barred under Sections 4, 19, 26 and 27 of the Limitation of Actions Act. According to the 7th Defendant, the professional undertaking having been breached in or about the year 2013, the Plaintiff's cause of action accrued at that point and the suit instituted in July 2025 was therefore filed long after the expiry of the 6-year limitation period.
51. The Plaintiff disputes that contention. It maintains that following the decision of the Advocates Disciplinary Tribunal delivered on 16th November 2020, the parties entered into settlement negotiations which continued until 2024. It further contends that the letter dated 27th October 2022 together with the subsequent correspondence constituted an acknowledgment of indebtedness capable of affecting the computation of time under the Limitation of Actions Act.
52. Having admitted the impugned correspondence into the record for purposes of consideration, it becomes apparent that the determination of the limitation issue is inextricably linked to disputed factual matters. The Court cannot determine whether time was interrupted, extended or recommenced without first considering the nature, context and legal effect of the correspondence exchanged between the parties.
53. The Plaintiff maintains that the correspondence constituted an acknowledgment of indebtedness and formed part of continuing settlement negotiations extending into 2024. The 7th Defendant disputes that characterization and contends that the communications were nothing more than privileged settlement proposals incapable of affecting limitation periods. Resolution of these competing positions necessarily requires an examination of evidence and factual findings.
54. It is trite law that a preliminary objection must raise a pure point of law. As was stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a preliminary objection cannot be sustained where the Court is required to ascertain contested facts or exercise judicial discretion.
55. In the present case, the Court would be required to interrogate the contents of the correspondence, the surrounding circumstances in which it was exchang
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