https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12401

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI HIGH COURT** **HCCC NO. E173 OF 2024** **FREDRICK ODHIAMBO OYUGI T/A** **ZAMBEZI PHARMACEUTICALS** **AND BATOKA PHARMACY LTD................................PLAINTIFFS** **VS** **CHIEF OFFICER, HEALTH, WELLNESS &** **NUTRITION, NAIROBI CITY COUNTY** **GOVERNMENT & 3 OTHERS...................................DEFENDANTS** **RULING** **Introduction** 1. The 1st & 2nd Plaintiffs’/Applicants herein instituted this suit vide an Amended Plaint dated **29th October 2024**. The Plaintiffs avers that they entered into a supply contract with the Defendants for supply and delivery of pharmaceutical goods of **Kshs 86,350,000/=,** payment the Defendants have withheld and refused to pay. They seek judgment be entered together with costs and interests. 2. Upon service of the summons to appear the Defendants entered appearance via a memorandum of appearance dated **19th September 2024.** Similarly, through a preliminary objection dated **14th April 2025** the 1st -4th Defendants objected the suit on grounds that the suit is time barred by dint of *Section 4 (1) of Limitations of Actions Act*, the same being instituted over 7 years later thus frivolous and an abuse of the court process. 3. The 1st & 2nd Plaintiffs/Applicants through an Application dated **18th March 2025** sought to enter a judgment in default of appearance against the 1st, 2nd and 3rd Defendants/Respondent for failing to file a defence within the prescribed time. 4. Also, the 1st & 2nd Plaintiff/Applicants’ through an Application dated **2nd April 2025** sought to enter a judgment in default of appearance against the 4th Defendant/Respondent for failing to file a defence within the prescribed time. 5. In response the 1st – 4th Defendants filed a Replying Affidavit sworn on **2nd June 2026** by Nyauma Emma Mong’ina, the Advocate on record for the Defendants. The Defendants opposes the twin applications and terms them frivolous and asserts that the Defendants entered appearance on **19th September 2024** where they subsequently filed a Notice of Preliminary Objection. Thus, the Application is unmerited that should be dismissed. The Respondents depone that the delay and or failure of filing a defence is not deliberate and it is not meant to obstruct the cause of justice. That they should be heard as envisage under Article 50 of the Constitution. 6. The Respondent filed its written submissions dated **17th March 2026** in support of the Preliminary Objection. On the other hand, the Plaintiffs filed its written submissions in support of Applications and in opposition of the preliminary objection, the submission are dated **27th March 2026.** 7. On **3rd June 2026,** the Court directed that the Applications and the Preliminary Objection be heard together and canvassed by way of written submissions. The court reserved the **30th day of July 2026** for ruling. **Plaintiffs’ Applicants Submissions** 1. The Plaintiffs submits that the suit as founded on a contract dated **2nd September 2016** is not time-barred. While conceding that *Section 4(1)(a) of the Limitation of Actions Act* ordinarily bars contractual claims after six years, they invoke *Sections 23(3) and 24(1) of Limitation of Actions Act*, which provide that a written and signed acknowledgment of a debt resets the limitation clock. In seeking to submit on the basis of jurisdiction, the Plaintiff contend that a letter from the Office of the Controller of Budget dated **25th May 2022**, approving the debt pursuant to the Controller's oversight mandate under *Article 228 of the Constitution*, constitutes such a written & signed acknowledgment by the Defendants, thereby reviving the claim and rendering the suit filed within six years of that acknowledgment timely. They cite the decision of ***Shire v Thabiti Finance Co. Ltd* [2000] LLR 1455 (CAK)** in support of the assertion that an acknowledgment of debt revives a statute-barred action. In ***Nicholas Mahihu Muriithi v Barclays Bank Kenya Limited* [2018] eKLR** they stated that thesuit is not time-barred where acknowledgment fell within the limitation period. Lastly, they relied on the decision of ***Kisii County Government v Masosa Construction Company Ltd* [2015] eKLR** where a Town Clerk's letter acknowledging debt was valid under *Section 23(3) of Limitation of Actions Act*. 2. On procedure, the Plaintiffs argue the Defendants' preliminary objection is incompetent because it was raised without a defense having been filed, relying on ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* [1969] EA 696** submitting that a Preliminary Objection must arise from pleadings, ***Saleh v Osano & another* [2025] KEELC 1030 (KLR)** where the court held that a Preliminary Objection not grounded on a filed defence is wrongly taken and lastly ***Achiando v Domo & 2 others* [2025] KEELC 798 (KLR)** where the court held that a Preliminary Objection arises by necessary implication from pleadings. They further submit that since the Defendants defaulted on filing a defence, judgment in default should be entered pursuant to *Order 10 Rule 8 and Order 49 Rule 4* of the *Civil Procedure Rules 2010*, which govern leave to enter default judgment against government entities. They pray for dismissal of the Preliminary Objection and grant of the default judgment applications. **1st - 4th Defendants' Respondents Submissions** 1. The Defendants maintain that the suit is statute-barred under *Section 4(1)* of the *Limitation of Actions Act* and *Section 3(2)* of the *Public Authorities Limitations Act,* the latter imposing a three-year limitation on contractual claims against government or local authorities. They note the cause of action accrued on **2nd September 2016**, while suit was filed on **29th October 2024** a lapse of eight years, exceeding both the six-year general limitation and the three-year public authority limitation. They contend no leave to file out of time was sought, and no statutory exception (fraud, mistake, or disability) under *Sections 26–28* of the *Limitation of Actions Act* was demonstrated. They rely on ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd*** establishing that a preliminary objection is a pure point of law argued on assumed facts, and that limitation qualifies as such a point. ***Divecon Limited v Samani* (1995-1998) 1 EA 48** buttressing their submission that no right or power exists to bring an action after the limitation period lapses; thus the court lacks jurisdiction to entertain it. ***Iga v Makerere University* [1972] EA 65** a plaint barred by limitation must be rejected. ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd* [1989] KECA 48 (KLR)** where the Court of Appeal held that jurisdiction is everything, and its absence obliges the court to down its tools. Lastly, they relied on the decision of ***Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited* (2014) eKLR**, submitting that equity aids the vigilant, not the indolent; a claimant who sleeps on their rights is barred by delay. They submitted that that the Preliminary Objection be upheld, the suit struck out with costs, and any other relief the court deems fit be granted. **Analysis & Determination.** 1. This Court has considered the twin applications and the preliminary objection. In order to arrive at an informed, just, equitable and reasonable decision, this Honorable Court has framed the following issues for determination; 1. *Whether the preliminary objection dated 14th April 2025 is merited.* 2. *Whether a default judgement should be entered against 1st -4th Defendants* **Whether the preliminary objection dated 14th April 2025 is merited** 1. This Court will first address itself as to what amounts to a preliminary objection. A preliminary objection is a point of argument raised by a litigant on a pure point of law, these points of law ought to be gleaned from the pleadings. A definition and nature of a Preliminary Objection was given in the classical case of ***Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700***. In it, Sir Charles Newbold defined a Preliminary objection as follows:- ***“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. The 1st -4th Defendants have raised a preliminary objection on the ground that the suit is time barred by dint of *Section 4 (1) (a) of the Limitation of Actions Act* and *Section 3(2) Public Authorities Limitations of Action Act*. That the same is premised on a contract purportedly done on **2nd day of September 2016.** A plea of limitation is ordinarily a pure point of law which if argued by the parties assuming that the contract was entered on the said date and there being a written & signed acknowledgement the same will primarily dispose of the suit. 2. *Section 4(1) of the Limitation of Actions Act*, provides that an action ought to have been instituted within a period of six (6) years from the date when the cause of action accrued. The said Section provides as follows: ***“(1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued:*** * + 1. ***Actions founded on contract.”*** 1. The Supreme Court in ***Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013,*** which was subsequently cited by same Apex Court in ***Hassan Nyanje Charo vs. Khatib Mwashetani & 3 Others, Civil Application No. 23 of 2014***, Court held as follows; ***“Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”*** ***(16) It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. (See Hassan Nyanje Charo v Khatib Mwashetani & 3 Others, Civil Application No. 14 of 2014, [2014] eKLR) “*** 1. From the foregoing a plea of limitation may be a pure point of law, however this court has to be satisfied that there are no contested facts, all the facts ought to be agreed upon by all parties and also nothing in the contestation or discernment should warrant the court to exercise its discretion. 2. From the pleadings and particularly at Paragraph 10 & 11 of the Amended Plaint the 1st Plaintiff avers that it entered into a contract Tender No. **NCC/HEALTHFW/609/2015** with the 4th Defendant. The 2nd Plaintiff also avers that it entered into a contract with the 4th Defendant for supply and delivery of assorted medical supplies. From the said averments no date has been specified at to when these contracts were entered or/or the deliveries supplied. 3. The 1-4th Defendants argues that this Court does not have jurisdiction and the suit is time barred as provided under *Section 4 (1) of the Limitation of Actions Act*. That the cause of action accrued on **2nd September 2016** and the suit was instituted on **29th day of October 2024** after a lapse of 8 years. In response Plaintiffs argues that the suit is not statute barred it falls under the exceptions provided under *Section 23(3) and 24(1) of the Limitations of Actions Act* which provides for an enlargement of time based on an acknowledgement of a debt. They state that the exception is anchored on the letter dated **25th May 2022** by the office of the Controller of budget constituting a written acknowledgment of the debt by the 4th Defendant. 4. From the above submissions it is clear that this court has to ascertain the facts, for instance when the cause of action arose. The same cannot be gleaned from the pleadings. Neither of the parties have filed additional pleadings particularly stating the date the contract was entered and/or breached. The Plaintiff has only filed an Amended Plaint with no Witness Statements or List of documents attached to it. Similarly, the 1st -4th Defendants only entered an appearance they are yet to file a defence. Even if this court was to ascertain the uncontested facts there are no pleadings on record to assist the court to arrive at a finding as to which facts are uncontested. 5. Given the foregoing, the issue of limitation of actions is not a pure question of law, consequently requiring evidentiary proof, and cannot be properly raised as a Preliminary Objection. Therefore, whereas the question of whether the suit is time-barred is a crisp point of law, the determination as to whether the cause of action accrued outside the prescribed statutory period requires an inquiry into the facts, which can only be determined upon evidence being adduced, evidence which is yet to be adduced and or agreed upon. 6. Notwithstanding, even if the court was to assume that the plea of limitation is valid, the Plaintiff/Respondent is entitled to be heard on the exceptional circumstances that there exists an acknowledgment of debt in writing and signed justifying extension of time, which requires factual proof as to when the acknowledgement was made, by whom and, if any. Such a determination can be properly adjudicated if the parties had sufficiently pleaded so. 7. The Court of Appeal in ***Lucy Kurgat v Franline Yaola Manyonge [2020] KECA 230 (KLR),*** while quoting ***Mukisa Biscuits* (Supra)** reaffirmed that a preliminary objection must be denied if it relies on disputed facts that lack a clear record of admission, a Court cannot make a summary ruling without first resolving those factual disagreements. The court proceeded to lament and warned that; ***“We find it quite surprising that the clear sentiments expressed so long ago seem to have fallen on deaf ears and parties still insist on the unhealthy and often time-wasting penchant for raising preliminary objections when they clearly do not lie”*** 1. This Court notes that the Defendants entered appearance on **19th September 2024** through counsel A K Gitonga, however they are yet to file a defence to date. This Courts observes that a plea of limitation should have been pleaded as a defence first before raising it as a Preliminary Objection vide a Notice of Preliminary Objection. The Court of Appeal in **Achola & Another Vs Hongo & Another [2004]** **eKLR 462**while addressing such a similar predicament held that failure to plead limitation and or file a defence does not entitle a party a party to base a preliminary objection on such unpleaded ground. The court thus stated: **“10. As pointed out earlier, a defence opens the eyes of the court to see the contested, uncontested and/or admitted facts. When the Preliminary Objection is raised. Later, it is then easy to see what facts it is premised on and whether those facts are contested or not. The defendants were wrong in plunging headlong into the Preliminary Objection without first filing the defence.”** 1. The 1st -4th Defendants Preliminary Objection raises issues intertwined with disputed facts and matters requiring taking of evidence and exercise judicial discretion. Thus, the Objection does not meet the threshold of a proper preliminary objection as the facts are distinguishable, not pleaded and contested. 2. As such, this Court dismisses the preliminary objection dated 14th of April 2025 by the 1st to 4th Defendants. The dismissal of the Preliminary Objection does not, however, amount to a substantive determination that the suit was filed within time. It only means that the limitation question is unsuitable for final determination as a preliminary point. The Defendant remains at liberty to plead limitation in its defence, whereupon the issue may be determined on the evidence presented at trial or through another procedurally appropriate process. **Whether a default judgement should be entered against 1st -4th Defendants** 1. *Order 7 Rule 1* *Civil Procedure Rules, 2010* provides that a defendant shall file a defence 14 days after entering an appearance. The consequences of nonappearance or failure to file a defence is provided under *Order 10* wherein a plaintiff is at liberty to apply for entry of judgment in default of defence or appearance. 2. *Order 10 Rule 8* of the *Civil Procedure Rules, 2010* provides that: - ***“No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return day”*** 1. It is not in dispute that the 1st – 4th Defendants entered appearance on 19th September 2024. Also, the Defendants are in admittance that they are yet to file a defence, no reason has been provided as to why. On that premise the Plaintiff/Applicants through their two applications seeks that judgment be entered against 1-4th defendants for failure to file a defence. *Order 10 rule 8* first requires a party to seek leave before a default judgment can be entered against such a party. 2. In the instant Application, the Plaintiffs/Applicants urge this court to exercise its discretion in the current circumstances to grant it leave to apply for a judgment in default against the Defendants/Respondent and similarly enter judgment in default of defence. 3. Having perused the record, it is this Court’s finding that the Defendants were properly served, they entered appearance, filed a preliminary objection but they are yet to file a defence or give any justifiable reason as to its failure. The failure of filing a defence has been admitted by the Defendants Respondents. 4. The Defendant is consequently in procedural default. That finding does not, however, necessarily conclude the matter. The Court must consider whether judgment should be entered immediately or whether the circumstances justify granting the Defendant a strictly limited opportunity to regularise its pleadings. 5. The Court is mindful that the Civil Procedure Rules are not optional. A litigant cannot unilaterally substitute a preliminary objection for a defence or indefinitely suspend the applicable timelines by electing to pursue a preliminary point. Procedural timelines exist to facilitate orderly, expeditious and proportionate adjudication. 6. At the same time, the Court’s principal responsibility is to administer substantive justice between the parties. Sections 1A and 1B of the Civil Procedure Act require the Court to facilitate the just, expeditious, proportionate and affordable determination of civil proceedings. Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities. 7. Article 159(2)(d) is not a licence for disregard of procedural rules. It does not erase default or confer an unrestricted right to file pleadings at any time. It nevertheless requires the Court, where possible and without occasioning injustice to the opposite party, to choose a proportionate response to procedural non-compliance. 8. Although the authorities on setting aside default judgments ordinarily concern applications made after judgment has been entered, the principles governing the exercise of discretion are instructive at the present stage. It would be anomalous for the Court to enter a judgment which, on the material already before it, would likely become the subject of an immediate application to set it aside on the basis of a potentially triable defence. 9. In **Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the** Court held that “**the main concern of the Court is to do justice to the parties. In considering whether a defence is one on the merits, the Court is not required to determine that the defence will ultimately succeed. It is sufficient that the proposed defence raises a prima facie or triable issue deserving adjudication”**. 10. In *Pithon Waweru Maina v Thuka Mugiria* [1983] KECA 117 (klr), the Court of Appeal affirmed that the discretion is broad but must be exercised judicially and upon terms that are just, the primary concern being to do justice between the parties. 11. In the present case, the Defendant did not wholly ignore the proceedings. It entered appearance and challenged the suit through a Preliminary Objection. Its participation demonstrates an intention to contest the claim, although the procedural course it adopted did not relieve it of the obligation to file a defence. 12. Entering default judgment at the present stage would preclude the Defendant from pleading and presenting evidence on the very issue which the Court has found cannot properly be determined without evidence. In the particular circumstances of this case, such an order would elevate the Defendant’s procedural default above the substantive resolution of a potentially decisive issue. 13. The Court is also alive to the fact that the Plaintiff has pursued recovery of an allegedly outstanding debt and is entitled to the expeditious resolution of its claim. The Defendant should not obtain an open-ended indulgence merely because it elected to pursue an objection which did not meet the legal threshold. 14. The appropriate course is therefore to decline default judgment at this stage, but to grant the Defendant a final, limited and peremptory opportunity to file its defence. The Plaintiff is adequately protected through strict timelines and an appropriate order as to costs. **Disposition** 1. Consequently, the Court makes the following orders: 2. The 1st to 4th Defendant’s Preliminary Objection dated 14th April 2025 is hereby dismissed. 3. The Plaintiff’s application dated dated **18th March 2025** and **2nd April 2025** seeking interlocutory or default judgment is declined at this stage. 4. The Defendant shall file and serve its Statement of Defence, together with its list of witnesses, witness statements and list and copies of documents, within **fourteen (14) days** from the date of this ruling. 5. The leave granted in paragraph (c) above is a final indulgence. The Defendant shall not file its defence outside the stipulated period without prior leave of the Court obtained upon a formally filed application demonstrating sufficient cause. 6. In default of compliance with paragraph (c), the Defendant shall stand barred from filing a defence without further leave of the Court, and the Plaintiff shall be at liberty to renew its request for default judgment or seek such other consequential orders as may be appropriate under Order 10 of the Civil Procedure Rules. 7. The Plaintiff may file and serve a Reply to Defence, if necessary, within **fourteen (14) days** after service of the defence. 8. Upon closure of pleadings, the parties shall comply with Order 11 of the Civil Procedure Rules within **thirty (30) days**, after which the matter shall be mentioned for pre-trial directions. 9. As the Defendant’s failure to file a defence necessitated the application for default judgment, the Defendant shall bear the Plaintiff’s costs of that application in any event. 10. The costs of the Preliminary Objection shall be awarded to the Plaintiff. **RULING DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 30TH DAY OF JULY 2026** **ANNE M. OKUTOYI** **JUDGE** Ruling delivered in the presence of: **Ms. Ouko for the Plaintiffs.** **Ms. Nyauma for the Defendants.** **Ms. Mokeira-Court Assistant.**