https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8245

Great Tang Trading Kenya Ltd & another v Speedaf Logistics Kenya Limited & another (Civil Appeal 999 of 2024) [2026] KEHC 8245 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8245 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal 999 of 2024 BW Murunga, J June 11, 2026 Between Great Tang Trading Kenya Limited 1st Appellant Evans Laboso 2nd Appellant and Speedaf Logistics Kenya Limited 1st Respondent Simon Musyoki 2nd Respondent (Being an appeal against the ruling/order of Hon. J.W. NASIMIYU, Magistrate, delivered on 23rd August, 2024 on the 1st Respondent's Notice of Preliminary Objection dated 6th July, 2024 in Milimani SCCC No. E2604 of 2024) Judgment (Being an appeal against the ruling/order of Hon. J.W. NASIMIYU, Magistrate, delivered on 23rd August, 2024 on the 1st Respondent's Notice of Preliminary Objection dated 6th July, 2024 in Milimani SCCC No. E2604 of 2024) 1.“Time is too slow for those who wait, too swift for those who fear, too long for those who grieve, too short for those who rejoice, but for those who love, time is eternity.” 2.But what is time to those who wish to sue? 3.Henry Van Dyke’s poem quoted above doesn’t offer any answers for that. Instead, the Limitation of Actions Act in less poetic language and Section 57 of the Interpretation and General Provisions Act in even less enthralling argot becomes germane. 4.Section 57 states as follows:Computation of timeIn computing time for the purposes of a written law, unless the contrary intention appears—(a)a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;(b)if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;(c)where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;(d)where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time. 5.Before the appellate Court is a case about time and to be precise the time taken before a suit was filed and whether or not that suit was filed out of time. 6.A road traffic accident took place on or about 21st May 2021. Whilst the phrase ‘on or about’ lacks specificity, and is often used as a term of grammatical effect rather than legal precision, it assists that both the Appellants and the Respondents have agreed that the date was in fact 21st May 2021. The Court may therefore state that the road traffic accident took place on 21st May 2021, and that this was the date on which the cause of action accrued. 7.That commenced the counting of the time which was then within the confines of Section 4(2) of the Limitation of Actions Act that states: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. 8.I shall return to this Section shortly but suffice it to state at this moment that the Appellant filed the case in the Magistrate’s Court on 22nd May 2024. 9.Once they were served with the suit papers, the 1st Respondent filed a Response to the Claim on 5th July 2024 whereafter they then followed it with filing of a Preliminary Objection on 6th July 2024 in which they raised two main grounds:i.That the suit was statute barred pursuant to Section 4 of the Limitation of Actions Actii.That the entire suit was bad in law and should be struck out in limine. 10.This Preliminary Objection was canvassed by written submissions with the Appellant filing their written submissions dated 9th August 2024 whilst the 1st Respondent demurred in filing the written submissions. 11.The learned trial Magistrate delivered the ruling on the Preliminary objection on 23rd August 2024 when she upheld the Preliminary Objection by holding:“The Claimant’s claim herein is based on the tort of negligence. It is not in dispute that the accident, the subject of the claim herein, occurred on 21st May, 2021. That is when the cause of action accrued going by the provisions of Section 4 (2) of the Limitation of Actions Act which provides that the cause of action of tort accrues on the date of the accident and not on the following date. Section 57 of the Interpretation and General Provisions Act as relied on by the Claimants expressly provides that ‘In computing time for purposes of a written law, unless the contrary intention appears’ and it is clear that such contrary intention appears under Section 4 (2) of the Limitation of Actions Act such that the cause of action accrues on the date of the occurrence of the tort.” 12.Aggrieved by this decision, the Appellant filed the appeal in this Appellate Court on the following Grounds:I. THAT the learned Magistrate erred in law and fact in failing to appreciate Section 4 of the Limitation of Actions Act read together with Section 57 of the Interpretation and General Provisions Act.II. THAT the learned Magistrate erred in law and fact in failing to appreciate and take judicial note of the case of Francis Njenga v James Muraya & Another (2021) eKLR and John Mwangi Ngugi v Orient Sacco Society Limited (2021) eKLR in which the Courts state that both the sections above should be read together and not in isolation of the other.III. THAT the learned Magistrate erred in law and fact in allowing the 1st Respondent's Preliminary Objection in quo dated 6th July, 2024, by failing to consider and appreciate the doctrines of stare decisis and judicial precedent.IV. THAT the learned Magistrate erred in law and fact by disregarding the Appellants evidence on record and allowing the Appellant's Preliminary Objection in quo dated 6th July, 2024.V. THAT the ruling of the learned Magistrate on the Respondent's Preliminary Objection in quo dated 6th July, 2024, delivered on the 23rd August, 2024 is against the law, judicial and legal principles and the weight of the evidence on record. 13.Both the Appellant and the Respondent filed their written submissions in the Appeal and the Court has had the privilege of engaging with the submissions. ANALYSIS AND DETERMINATION 14.The Appellant relied on the case of Francis Njenga v James Muraya & Another (2021) eKLR in which the Judge had held thatFrom the above provisions (of Section 57 of the Interpretation and General Provisions Act) what is clear is that the 'months' here means calendar month.The date the event took place was the 14th April 2013. The twelve months began to run from that date. However, the law says that the date of the occurrence is excluded hence time began to run on 15th April 2013 and ended on 15th April 2014.The 15th April 2013 was a Monday. 15th April 2014 was a Tuesday. Neither of these days are among the excluded days. The exclusion in the computation of time of Saturdays, Sundays and all other excluded days only applies where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days." 15.It is clear that the provisions relating to the end date being a Saturday or Sunday and any excluded day such a public holiday do not seem to be the contention in this matter. The days that are in contention are 21st May 2024 which was a Tuesday and 22nd May 2024 which was a Wednesday. 16.Time starts to run from the date of the cause of action as Section 4 of the Limitation of Actions Act stipulates. The Appellant had three years to file suit. During this period, the person who is aggrieved is literally on the clock. They have an option to file the case the following day or within the delineated period of close to one thousand and ninety-six days. Those are not few days by any stretch. 17.The law sets these time frames because it would be unfair to keep someone in a state of trepidation for a long time wondering if they have a date with court or not if the person who is aggrieved decides to take action. 18.The Limitation of Actions Act therefore has a perfect yoke between the scales of justice between competing interests of those who have suffered loss as a result of a wrongful act by another to obtain compensation for that loss, and those accused of committing the wrongful act not to have a claim hanging over their heads like the proverbial Sword of Damocles. 19.Time is not a suggestion of statute but rather a clear countdown. Section 57 of the Interpretation and General Provisions Act provides clarity on computation but hastens to add that this is unless the contrary intention appears. What is the contrary intention here? There is none that has been advanced. 20.The Court of Appeal has had an opportunity to compute time in the case of Maersk Kenya Limited v Murabu Chaka Tsuma [2017] EKLR when the Court held as follows:“…When six years is computed from when the cause of action arose on 20th November 2006, there is no question that the suit ought to have been filed latest before 19th November 2012…” 21.Whereas this decision from the Court of Appeal aligns itself to the position that certainty in deadlines is important, the end date that is mentioned may, with the greatest respect, have fallen in error as this decision will attempt to demonstrate. The concept isn’t per incuriam though. This means that the limitation period ought to be strict such that even a one day error can determine whether or not a claim is time barred. 22.Since the timelines can mean that a suit is either sustained or maintained, it is important to consider all the arguments made for and against strict compliance with time. 23.Section 57 of the Interpretation and General Provisions Act gives an allowance of the exclusion of the one day when the event happened. This means that in this case, the accident having happened on 21st May 2021 would mean that that day is excluded from computation. 24.Why do we exclude the first day? I guesstimate that it is because the law is keen on having portions and fractions of the day when it starts to count time. A day begins at midnight and ends at midnight and if an accident happens during the afternoon, it is only sensible that the time starts running at the next midnight so that complete days are counted. 25.The counting of the three years then starts on 22nd May 2021 which would then mean that the three years would end on 21st May 2024. Diagrammatically, this would be presented as: 26.It is important to have the dates clear because the day starts at midnight and ends the last second before midnight. The 22nd May 2021 is the same night that the accident happened once the clock strikes midnight and the excluded day ends once the clock strikes midnight. That would then go on until 21st May 2024 and when the clock strikes midnight to turn to 22nd May 2024, the time has lapsed. 27.Had 21st May 2024 been a Sunday or a public holiday, it would have constituted an excluded day, and the end date would have moved to the following working day. But, other than in October the year of our Lord 1582, the calendar never lies, and, taking a dekko at the calendar of May 2024, the 21st May 2024 was a Tuesday, and not a Sunday or a public holiday in our Republic 28.Returning to the Limitation of Actions Act at Section 4(2), there are two words used when setting the three years. The words are ‘from’ and ‘after’. The suit is not to be filed (or to be brought to use the exact words in the statute) AFTER three years FROM the date the cause of action accrued. 29.In his article in the Singapore Law Review (1998) 19 Sing LR 298-308, titled Getting Called: Recent Developments, Jack Lee Tsen-Ta when calculating the period of Pupillage postulates that:It is well established, for instance, that where an act is required to be done within a specified period after or from a specified date, the period begins immediately after that date, not on the date itself. 30.This position is correct. The accrual of the cause of action having been 21st May 2021 then it follows that the action had to have that reference date but with the rider that the first day is excluded which meant that the counting of days commenced on 22nd May 2021. 31.The other computation puzzle would be completed by looking at Order 50 Rule 8 of the Civil Procedure Rules, 2010 that is known as the civilis computatio principle which provides that:“In any case in which any particular number of days not expressed to be clear days is prescribed under these Rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day. 32.The UK Court of Appeal in Pritam Kaur v S Russell & Sons [1973] QC 366 QB also had an opportunity to consider the computation of time in a section that is similar to the Kenyan law on limitations found at Section 4(2) of the Limitation of Actions Act. 33.The Court upheld the construction of the computation of time as had been laid out in another case of Marren vs. Dawson which excluded the first day on which the cause of action accrued. Nothing, Lord Denning stated, turned on the difference in wording, regardless of whether the relevant provision was phrased as “after the expiration of [a time period] from [a date]” or “within [a time period] after [an act or event]”:We are asked to decide this preliminary point of law: Was the action commenced within the period of three years allowed by the Statutes of Limitation? Or is it statute-barred? The [Limitation] Act of 1939, as amended by the Act of 1954, says that the action “shall not be brought after the expiration of three years from the date on which the cause of action accrued.” The [Fatal Accidents] Act of 1846, as amended by the Act of 1954, says that it "shall be commenced within three years after the death." Nothing turns on the difference in wording. The period is the same in either case. The first thing to notice is that, in computing the three years, you do not count the first day, September 5, 1967, on which the accident occurred. It was so held by Havers J in Marren v Dawson Bentley & Co Ltd [1961] 2 QB 135. The defendants here, by their cross-notice, challenged that decision: but I think it was plainly right. 34.From two of the above cited cases, to wit, Maersk Kenya Limited and Francis Njenga, there seems to be confusion on how the dates are calculated. Maersk states that if the cause of action arises on 20th November, the end date is 19th November which is a date before the anniversary date. Francis Njenga states that if the cause of action was to start on 15th April, it would end on 15th April. As noted in the explanation about the fractions of days, I am more inclined to the Francis Njenga calculation. 35.It is also the calculation that was taken in the case of Dodds v Walker 1981 JELR 80270 HL that established the Corresponding Date Rule. That corresponding date makes the third anniversary date of the day after the cause of action to be the last day of filing. In this time of the Court Tracking System, the time is also tracked when filing and one may even file on the very last day and the time captured. 36.For those who may feel that being too pedantic on time may create a bottleneck for those who are aggrieved and are out of time to file a cause of action, firstly, there is a safety valve created by the law for such parties to approach the Court. 37.One of these is to file for extension of time in which to file the suit. Such applications have been considered by the Courts over the years and been granted. The Appellant did not choose to apply that valve. It was a choice that they took. 38.Court of Appeal noted that even one day would lead to a suit being time barred. Musinga, K M'inoti and Odunga, JJA sitting in Nyakerario & 5 others v Professional Clean Care Limited (Civil Appeal 466 of 2019) stated that:Consequently, we have no reason to fault the learned Judge in finding that the suit was statutorily time barred by one day by virtue of section 90 of the Employment Act. 39.Incidentally, it appears the Judges in this Nyakerario case went back the Francis Njenga way.It is not in dispute that British standard calendar year is 365 days although leap years have an extra day. It is true that 2016 was a leap year due to the addition of the intercalary day in February. What this means is that, discounting the day the cause of action arose, the first year which commenced from 1st December 2014 to 30th November 2015, had 365 days; the second year which commenced from 1st December 2015 to 30th November 2016, had 366 days (since there was an extra day in February 2016); and the third year which commenced from 1st December 2016 to 30th November 2017, had 365 days. It is clear that the last day for filing the suit was 30th November 2017 and it matters not whether the year 2016 was a leap year. It only means that the appellants had the benefit of an extra day whose benefit they did not make use of. The leap year does not mean that the limitation period is carried forward to the next day. 40.I have already stated how Francis Njenga had the right calculation. Be that as it may, is it unfair to dismiss the suit because it was one day late? 41.Whilst it may appear so, Courts are there to balance the rights of both parties. The prejudice argument would only arise if there is acknowledgement by the party in breach that they are time barred and they seek the extension of time. In this case, the party does not acknowledge that and thus slams the door shut on the valve that is open for leave and consequent consideration of the grounds necessitating the leave which may include the no-prejudice-suffered issue. 42.The other issue raised in the submissions concerns the competence of the Preliminary Objection itself. The argument advanced is that the locus classicus in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 is narrow, in that it confines a preliminary objection to a pure point of law, and that where a question arises as to the date of the accident, the matter strays into the arena of factual determination. 43.In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (supra), the Court of Appeal for East Africa held that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued, may dispose of the suit, argued on the assumption that the facts pleaded by the other side are correct. 44.Significantly, the Court gave, as the very examples of a proper preliminary objection, ‘an objection to the jurisdiction of the court, or a plea of limitation’. A plea that a suit is statute barred is therefore the textbook instance of a competent preliminary objection. 45.This argument does not, therefore, find favour with this appellate Court, because the date of the accident is not in issue and is not a contested fact. The Respondent merely raised the point that, if the accident took place on the agreed date, the suit is time barred. No new facts were introduced that would constitute alternative facts, so as to take the Preliminary Objection outside the ambit of a pure point of law. 46.Moreover, a plea of limitation is no mere technicality. As this Court is reminded by Bosire Ongero v Royal Media Services [2015] eKLR, the question of limitation goes to the jurisdiction of the court: once a matter is shown to be statute barred, the court is divested of jurisdiction to entertain it. The learned trial Magistrate, having correctly found the suit to be time barred, had no option but to dismiss the same. 47.The appeal herein is dismissed. Costs of the Appeal are awarded to the Respondent. 48.Time is too rigid for those who litigate. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE, 2026.BENARD WAFULA MURUNGAJUDGEDELIVERED ON THE VIRTUAL PLATFORMIn the presence of:Ms Bett instructed by Mukite Musangi for the AppellantLwande instructed by Wanam Sale & Oningo for the RespondentKevin Babu - Court Assistant