https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7148

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPEAL NO. E1234 OF 2024** **JOB NYUMU SOLOMON………….…………….……….APPELLANT** **VERSUS** **DANSON INVESTMENTS LIMITED……………….RESPONDENT** *(Being an Appeal from the Judgment of the learned Magistrate Hon. J.W. Nasimiyu delivered on 30th September, 2024 in Milimani* *SCCC No. E3497 of 2024)* **JUDGMENT** 1. The Appellant was the Claimant in Nairobi SCCC Case No. E3497 of 2024 where he sued DANSON INVESTMENTS LTD seeking compensation under the doctrine of subrogation for damages to motor vehicle Registration No. KCZ 575Z following a road traffic accident with motor vehicle Registration No. KDA 013Y belonging to the Respondent. 2. The case proceeded under Section 30 of the SCC Act by way of written submissions. 3. The trial Court found that the suit was statute time barred and dismissed it suo moto with no orders as to costs. 4. The Appellant has filed this Appeal against the said dismissal of the suit on the following grounds:- 5. ***THAT the learned trial Magistrate erred in law as she did by dismissing the Claimant’s suit.*** 6. ***THAT the learned trial Magistrate failed in upholding justice and fairness by dismissing the suit.*** 7. ***THAT the trial Magistrate erred in law and fact as she did by ignoring the fact that the Respondent’s counsel never raised the issue of jurisdiction as is required by law, which is by raising a Preliminary Objection.*** 8. ***THAT trial trial Magistrate erred in failing to uphold legal parameters and binding precedents in line with Article 159 of the Constitution 2010 and the express provisions of the Small Claims Court Act.*** 9. The parties filed written submissions as follows; The appellant submitted that limitation is a matter of law that must be raised through pleadings or by a formal preliminary objection. 10. The respondent never raised limitation before the trial court and only raised it in its submissions. 11. The law is clear that a party cannot introduce new issues in their submissions. In support the appellant cited **Clips Limited v Brands Imports (Africa) Limited formerly named Brand Imports Limited [2015] KEHC 8388 (KLR)**: ***“…However, it is trite law that new issues cannot be raised in submissions. Korir, J in the case of Republic v Chairman Public Procurement Administrative Review Board & another Ex-Parte Zapkass Consulting And Training Limited & another [2014] eKLR held that: “The Applicant, the respondents and the Interested Party all introduced new issues in their submissions. Submissions are not pleadings. There is no evidence by way of affidavits to support the submissions. New issues raised by way of submissions are best ignored.”*** 1. The appellant argued that limitation is a defence and not a jurisdictional bar to be raised by the court. 2. The burden law on the respondent to pleaded and prove that the claim fell outside the statutory period. 3. The court introduced the issue suo moto at judgement stage without inviting parties to address it. The appellant had a right to be heard under Article 50(1) of the Constitution. 4. Questions of jurisdiction or limitation must be subjected to the right to be heard as it is an issue of fact. The trial court therefore erred by raising the issue suo moto and dismissing the suit for the reason it was filed late by 7 days. 5. The appellant submitted further that Article 159 (2) (d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. 6. It has been held that mistakes of counsel ought not to be visited upon the client. Counsel took the initiative, upon being given instructions on 27/6/2024 to cover all bases and ensure the right party was sued. 7. The delay in filing the suit was occasioned by counsel and not the client in any way. The delay was inadvertent due to administrative failure by the judiciary’s e-filing system and was in any event not prejudicial to the parties being filed 7 days past the filing date. 8. At the time of filing this suit the e-filing portal was experiencing delays and this resulted in the claim not being uploaded to the CTS despite several attempts. 9. The appellant urged this court to invoke Article 159 (2) (d) of the Constitution of Kenya and consider substantive justice as opposed to procedural technicalities. 10. The respondent alternatively submitted that the matters canvassed in the memorandum of appeal are not matters of law but fact. It is well established that appeals from the small claims court to the high court shall be solely on matters of law. 11. This principle is clearly set out under section 38 (1) of the Small Claims Court Act which provides that **“*A person aggrieved by the decision or an order of the court may appeal against that decision or order to the High Court on matters of law”*** 1. The respondent submitted that the appellant’s claim is time barred which is against section 4 (2) of the Limitations of Actions Act which expressly stipulates that an action founded on tort may not be brought after the end of three years from the date which the action accrued. 2. The respondent argued that from the statement of claim the accident occurred on 11/7/2021 while the appellant filed his claim before the small claims court on 18/7/2024. The appellant slept on his rights by not seeking leave to extend the limitation period before filing his claim as required under section 27 and 28 of the Limitation of Actions Act. 3. The respondent further argued that the appellant cannot claim he was denied an opportunity to be heard under article 50 of the Constitution just because the respondent counsel failed to raise a preliminary objection earlier yet it was the appellant counsel who requested that the case before the trial court proceed via documentation under section 30 of the Small Claims Act when the case came up for hearing on 4/9/2024. 4. That by opting to proceed via documentation under section 30 the appellant waived nay expectation of formal hearings, oral arguments or preliminary motions typical in adversarial proceedings. 5. The respondent contended that the appellant’s attempt to blame the judiciary’s e-filing administrative failure for the delay in filing is baseless as no evidence of the failure was ever presented at trial and the limitations of actions act does not recognize technical glitches as an automatic ground for extension of the limitation period. In light of the above the respondent submitted that the judgement of the small claims court was rendered fairly and urged this court to dismiss the appeal herein with costs. 6. The issues for determination in this appeal are as follows; 7. ***Whether the trial court erred in raising the issue of limitation suo moto and dismissing the suit without affording the parties a hearing.*** 8. ***Whether the Appellant’s claim is statute-barred under Section 4(2) of the Limitation of Actions Act (Cap 22).*** 9. ***Whether the appeal raises pure matters of law as required by Section 38(1) of the Small Claims Court Act.*** 10. ***Whether the Appellant is entitled to the relief sought****.* 11. The trial court dismissed the suit suo moto on the ground of limitation without first inviting the parties to address the issue. 12. While a court has the inherent power to raise a point of law concerning jurisdiction or limitation, the exercise of such power must be consistent with the rules of natural justice. 13. The right to be heard is a constitutional bedrock under Article 50(1) of the Constitution of Kenya, and a party cannot be condemned to dismissal on a technical legal defence that was not pleaded or canvassed, without being given an opportunity to respond to it. 14. While limitation is a jurisdictional issue, it must be pleaded or raised at the earliest opportunity. 15. The law is clear that new issues cannot be introduced through submissions alone. 16. Submissions are not pleadings, and new issues raised by way of submissions are best ignored. 17. The Respondent failed to raise a Preliminary Objection on limitation before the trial court, and the trial court erred by introducing the issue in its judgment without hearing the Appellant. 18. Consequently, the judgment of the trial court dated 30th September 2024 is hereby set aside. 19. The suit is remitted back to the Small Claims Court for hearing on merit. 20. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 22nd day of May, 2026.** 1. **N. ONGERI** **JUDGE** **In the presence of:** No appearance for the Appellant No appearance for the Respondent Chrispine – Court Assistant