https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12854

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **MISC. CIVIL APPLICATION NO. E144 OF 2025** **CHRISTOPHER MUCHIRI KANGETHEAPPLICANT** **VERSUS** **THE HON. ATTORNEY GENERAL1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS2ND RESPONDENT** **RULING** **The Application** **1.** Before the Court is the Applicant’s Originating Summons dated 2nd May 2025, brought under sections 26, 27 and 28 of the Limitation of Actions Act (Cap 22) and Order 37 rule 6(1) of the Civil Procedure Rules, 2010. By it the Applicant seeks the following orders: (a) That the Court be pleased to grant leave to the Applicant to file a suit out of time for damages for malicious prosecution against the Respondents, arising from his prosecution in Mombasa Chief Magistrate’s Criminal Case No. E448 of 2021; (b) That the draft plaint annexed to the summons be deemed as duly filed upon payment of the requisite court fees; and (c) That the costs of the application be in the cause. **2.** The application is supported by the Applicant’s Supporting Affidavit sworn on 2nd May 2025 and a Further Affidavit sworn on 21st November 2025, together with written submissions. The Respondents oppose it through Grounds of Opposition dated 28th October 2025 and written submissions dated 8th January 2026. I have considered the summons, the affidavits, the annextures and the rival submissions. **The Applicant’s Case** **3.** The Applicant’s case, drawn from the summons, the affidavits and his submissions, is briefly as follows. He was arrested on or about 20th June 2020 and charged in Mombasa Chief Magistrate’s Criminal Case No. E448 of 2021 (Republic v Christopher Muchiri Kangethe) with an offence connected to the theft of a consignment of tea from his employer’s premises. He avers that at the material time he was on authorised medical leave, and that there was no evidence linking him to the offence. **4.** The criminal proceedings terminated in his favour on 20th March 2024, when he was acquitted. In his Supporting Affidavit he deposed that the acquittal was under section 210 of the Criminal Procedure Code; by his Further Affidavit he corrected this to section 215 of the Criminal Procedure Code, explaining that the earlier reference was a clerical and legal oversight and that, either way, the acquittal amounts to a favourable termination of the criminal case for the purposes of a malicious prosecution claim. **5.** The Applicant contends that he was unable to institute his suit within the limitation period on account of ill-health and want of means. He relies on medical records from the Coast General Teaching and Referral Hospital said to show that, following his release, he suffered from pneumonitis, lumbar muscle spasms and depression, and states that he was unemployed throughout the limitation period. He avers that the delay was neither intentional nor contumelious, and that he moved the Court promptly upon the stabilisation of his health and personal circumstances. **6.** On the law, the Applicant submits that the cause of action for malicious prosecution accrued only upon the favourable termination of the criminal case on 20th March 2024, and that this was a material fact of a decisive character within the meaning of section 27 of the Limitation of Actions Act. He relies on section 28 as a “safety valve” permitting the Court to grant leave where justice so demands, and on Wasike v Swala [1984] KLR 591 for the proposition that illness is a sufficient explanation for delay and that the discretion to extend time should be exercised so as not to shut a deserving party out of the seat of judgment. He adds that a refusal of leave would leave him without a remedy for the alleged violation of his rights under Articles 28 and 29 of the Constitution. **The Respondents’ Case** **7.** The Respondents oppose the application on a single, essentially jurisdictional, ground. In their Grounds of Opposition dated 28th October 2025 they contend that the application is not founded in law and misconstrues the effect of sections 26, 27 and 28 of the Limitation of Actions Act, and that, the cause of action being one for malicious prosecution, time cannot be extended pursuant to those sections. **8.** In their submissions dated 8th January 2026 the Respondents develop the point. They submit that, by section 4(2) of the Limitation of Actions Act, an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued, and that the extension machinery invoked by the Applicant is confined by section 27 to actions “for damages for negligence, nuisance or breach of duty” in which the damages claimed include damages in respect of personal injuries. Malicious prosecution, they argue, is not among the torts so listed, and the Court accordingly has no jurisdiction to extend time in respect of it. **9.** The Respondents rely on Mary Osundwa v Nzoia Sugar Company Ltd [2002] eKLR, in which the Court of Appeal held that section 27 confers jurisdiction to extend time only where the action is founded on the torts of negligence, nuisance or breach of duty and the damages relate to personal injuries, and that the section does not reach other causes of action; the Court further held that such jurisdiction cannot be conferred by the consent of the parties. They also cite Chondo & another v Jawa & 5 others [2022] KEELC 15369 (KLR), in which an application to extend time in respect of the tort of trespass was disallowed on the ground that trespass is not among the torts listed under section 27. The Respondents pray that the application be struck out. **Issue for Determination** **10.** Although the parties framed several issues, the application in truth turns on one dispositive question: whether this Court has jurisdiction, under sections 26, 27 and 28 of the Limitation of Actions Act, to extend time to enable the Applicant to file a suit for the tort of malicious prosecution. The Applicant’s remaining contentions, as to the reasons for the delay, the sufficiency of his explanation and the interests of justice, arise for consideration only if that anterior question is answered in his favour. **Analysis and Determination** **(i) Jurisdiction is anterior** **11.** It is convenient to begin with jurisdiction, because a challenge to jurisdiction, once raised, must be resolved before anything else. As the Court of Appeal held in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything; without it a court has no power to make one more step, and where a court finds that it is without jurisdiction the only lawful course is to down its tools. The Respondents’ opposition is, in substance, a plea that this Court lacks jurisdiction to grant the leave sought. That plea must be determined first, and if it is upheld it disposes of the entire application. ***(*ii) The statutory framework** **12.** The limitation of actions founded on tort is governed by section 4(2) of the Limitation of Actions Act, which provides that an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. Where the intended defendant is the Government, the position is further circumscribed by the Public Authorities Limitation Act (Cap 39), section 3 of which fixes a limitation period of twelve months for proceedings founded on tort against the Government. The Applicant himself, in the grounds to his summons, pleads the twelve-month period under section 3(1) of that Act. **13.** The power of the Court to relieve a litigant from the strict operation of a limitation period is not at large. It is a creature of statute, and it exists only to the extent, and upon the conditions, that the statute provides. The provisions on which the Applicant relies, sections 26, 27 and 28 of the Limitation of Actions Act, must therefore be construed to see whether they reach a claim of the kind he proposes to bring. **14.** Section 26 postpones the running of the limitation period where the action is based upon the fraud of the defendant, where the right of action is concealed by fraud, or where the action is for relief from the consequences of a mistake. Sections 27 and 28 provide a distinct and narrower relief. Section 27 provides that section 4(2) does not afford a defence to an action founded on tort where the action is one “for damages for negligence, nuisance or breach of duty” and the damages claimed by the plaintiff consist of or include damages in respect of personal injuries, and where the material facts relating to that cause of action were or included facts of a decisive character that were outside the knowledge of the plaintiff until a date within the extended period. Section 28 prescribes the procedure by which, and the conditions upon which, the leave of the Court may be obtained to bring such an action out of time. Order 37 rule 6(1) of the Civil Procedure Rules, 2010, under which the Applicant has moved, is the procedural vehicle for precisely that species of application. ***(*iii) Whether malicious prosecution falls within sections 27 and 28** **15.** The decisive feature of sections 27 and 28 is that the relief they afford is confined to a defined and closed category of tort claims, those “for damages for negligence, nuisance or breach of duty” in which the damages include damages for personal injuries. The provisions do not speak of tort at large; they enumerate. And where a statute enumerates the cases to which it applies, the enumeration is ordinarily to be taken as excluding what is not enumerated. **16.** Malicious prosecution is not negligence, nuisance or breach of duty. It is a distinct, intentional tort, the essence of which is the institution or continuation of a prosecution, without reasonable and probable cause and with malice, which terminates in the plaintiff’s favour and occasions damage (see Murunga v Attorney General [1979] KLR 138, on which the Applicant’s own draft plaint relies for the elements of the tort). It is not a claim for damages for personal injuries within the meaning of section 27, and it does not become one merely because the Applicant alleges that his prosecution occasioned him ill-health. The gravamen of the proposed claim is the alleged abuse of the process of the criminal law, not a personal injury caused by negligence, nuisance or breach of duty. **17.** This construction is not novel. In Mary Osundwa v Nzoia Sugar Company Ltd [2002] eKLR the Court of Appeal held, in terms, that section 27 lays down the circumstances in which a court has jurisdiction to extend time; that the action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty, the damages claimed being in respect of personal injuries; and that the section does not confer jurisdiction to extend time in cases involving other causes of action. The Court added, significantly for the present case, that jurisdiction of this kind cannot be conferred upon a court by the consent of the parties. The same reasoning was applied by the Environment and Land Court in Chondo & another v Jawa & 5 others [2022] KEELC 15369 (KLR), where an application to extend time in respect of the tort of trespass was disallowed precisely because trespass, like malicious prosecution, is not among the torts listed in section 27. **18.** I am in respectful agreement with, and in any event bound by, the decision of the Court of Appeal in Mary Osundwa. Applying it, the position is clear: the tort of malicious prosecution does not fall within sections 27 and 28 of the Limitation of Actions Act, and those sections do not clothe this Court with jurisdiction to extend time to enable the Applicant to bring such a claim. **19.** Section 26 does not improve the Applicant’s position. Nothing in the summons, the affidavits or the submissions suggests that his right of action was concealed from him by the fraud of the Respondents, or that his claim is one for relief from the consequences of a mistake, within the meaning of that section. The section is simply not engaged on the facts pleaded. **The Applicant’s remaining contentions** **20.** I have not overlooked the Applicant’s evidence of ill-health, his want of means, or the plainly difficult circumstances in which he found himself following his acquittal. Had the question before the Court been whether, in the exercise of a discretion, a demonstrated delay ought to be excused, that evidence, and authorities such as Wasike v Swala [1984] KLR 591, would have called for anxious consideration. But that is not the question. Where the Court lacks jurisdiction to grant the relief sought, the sufficiency of the explanation for the delay does not arise, for no measure of sympathy or hardship can supply a jurisdiction that the statute withholds. As the Court of Appeal made clear in Mary Osundwa, jurisdiction cannot be conferred even by the consent of the parties; still less can it be conferred by the justice or hardship of an individual case. **21.** The Applicant’s submission that the cause of action accrued only upon his acquittal on 20th March 2024 is, as a general statement of the law of malicious prosecution, correct, favourable termination is an essential element of the tort, and time ordinarily runs from that date. But that submission, does not assist him. It fixes the date of accrual; it does not bring his claim within the closed list of torts to which sections 27 and 28 apply. The Applicant’s difficulty is not that time ran from the wrong date, but that the statutory machinery he has invoked does not extend to his cause of action at all. **Disposition** **24.** For the reasons given, the Court finds that it is without jurisdiction to grant the leave sought. The Originating Summons dated 2nd May 2025 is, accordingly, misconceived and must fail. **25.** On costs, the Applicant is a lay litigant of evidently modest means who has raised a question that, though unsuccessful, was not frivolous, and the Respondents are public offices. In the exercise of my discretion I consider that the justice of the case is best met by making no order as to costs. **26.** In the ultimate, the Originating Summons dated 2nd May 2025 is hereby struck out with no orders as to costs. It is so ordered. **Signed, dated and published on 14 August 2026** Ngaah Jairus **JUDGE**