JW v NMC Fertility (K) Ltd (Civil Appeal E1176 of 2024) [2026] KEHC 7130 (KLR) (Civ) (22 May 2026) (Judgment)

JW v NMC Fertility (K) Ltd (Civil Appeal E1176 of 2024) [2026] KEHC 7130 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7130 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1176 of 2024 AN Ongeri, J May 22, 2026 Between JW Appellant and NMC Fertility (K) Limited Respondent (Being an Appeal from the Judgment of the learned Principal Magistrate Hon. B.M. Cheloti (Ms.) delivered on 20th September, 2024 in Nairobi CMCC No. 3936 of 2023) Judgment 1.The appellant in this appeal filed Milimani CMCC No. 3936 of 2023 seeking general damages for distress, psychological and damages for breach of contract and also punitive and exemplary damages from the respondent. 2.The appellant alleged that she consulted the respondent on 17/11/2018 for Intra Uterine Insemination (IVI) and she was asked to write down donor specification but the respondent acted contrary to her specifications. 3.Further, that the respondent failed to scrutinize the donor samples for any pre-existing illness and the appellant got a child whose race does not meet the appellant’s specification and who has a medical condition. 4.The respondent filed a notice of preliminary objection against the appellant’s suit on the grounds that the cause of action is statute time barred in that it was filed outside the 3 years’ limitation period for a cause of action based on negligence contrary to section 4 of the Limitation of Actions Act. 5.The trial court found that the appellant was inseminated in 2018 and she filed suit on 30th August 2023 and therefore the suit was statute time barred. 6.The appellant argued that the period of limitation does not begin to run until fraud or a mistake could with reasonable diligence be discovered but the trial court dismissed the suit relying on the Court of Appeal case of Diana Katumbi Kiio v Reuben Musyoki Muli (2018) eKLR where the Court of Appeal said that in cases based on tort, the cause of action accrues when damage is first sustained. 7.The appellant is aggrieved by the dismissal of her suit and she has filed an appeal on the following grounds:-i.The learned trial Magistrate misdirected herself and erred both in law and in fact by upholding the defendant’s preliminary objection and striking out the appellant’s suit.ii.The learned trial Magistrate misdirected herself and erred both in law and in fact by making a finding that the appellant’s case against the Respondent was statutory time barred pursuant to the provisions of section 4 of the Limitation of Actions Act.iii.The learned trial Magistrate misdirected herself and erred both in law and in fact by failing to find that the issue of limitation of actions could not be raised as a preliminary objection for the reason that it requires interrogation of facts.iv.The learned trial Magistrate misdirected herself and erred both in law and in fact by failing to find that the time started running on 16.6.2021 when the race of the child was determined after DNA test done disclosed the race of the child.v.The learned trial Magistrate erred both in law and in fact by failing to address herself to the provisions of section 26 of the Limitation of Actions Act that the period of limitation only begun to run when the appellant discovered the fraud or the mistake by the respondent after DNA test results.vi.The learned trial Magistrate erred both in law and in fact by applying the wrong principles in interpreting the provisions of section 26 of the Limitation of Actions Act. 8.The parties filed written submissions as follows: the appellant submitted that the preliminary objection did not meet the threshold as was set out in the case of Mukhisa Biscuits Manufacturing Ltd v. West End Distributors (1969) EA 696. 9.The appellant argued that when a party pleads negligence the court has to ascertain when time started running. 10.In the case herein the time started running on 16/6/2021 when the DNA test was done and ascertained the race of the child. 11.In this case the appellant does not offend the Limitation of Actions Act. 12.The respondent was negligent during the period of treatment and inseminated the appellant with a different donor sperm. 13.Faced with the respondent’s refusal to disclose the race of the child on 16/6/2021 the appellant to the child for a DNA test and that is when she learnt that the child was of mixed race. 14.The time therefore started running on 16/6/2021 when the appellant discovered there was a mistake. The suit was filed on 29/8/2023 a period of less than 3 years. 15.The respondent alternatively submitted that from the appellant’s own pleadings it was self-evident that the cause of action began or accrued on 25/8/2019 when she delivered the baby and she started doubting that the child’s desired race. 16.This is the time upon which the 3-year statutory limitation started running against the appellant’s claim on tort. The appellant delayed in asserting her rights within the prescribed timeline and filed the suit in the lower court on 30/8/2023 without leave and without giving any reasonable explanation as to the delay given. 17.The respondent submitted that the appellant reliance on section 26 of the Limitation of Actions Act is a gross misapprehension and miscomprehension on these no-brainer provisions of the law. Section 26 provides as follows;“Where, in the case of an action for which a period of limitation is prescribed either,(a)The action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or(b)The right of action is concealed by the fraud of any such person as aforesaid; or(c)The action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it. " 18.The respondent argued that the above section solely governs causes of action founded on and or relating to elements fraud or mistake whereas the cause of action in the appellant's pleadings is entirely on the tort of negligence. 19.It is trite law that the tort of negligence and the tort of fraud are different and distinct causes of actions with distinct particulars and evidentiary burden of proof. 20.The appellant did not plead the action of fraud or give the particulars thereof. 21.The respondent argued that for her to introduce the said cause of action at this appellate stage is irregular and a desperate measure of mending a bad case. 22.The cause of action herein arose even if the appellant did not know of it. 23.The issues for determination in this appeal are as follows;i.Whether the appellant’s cause of action lies in tort or in contract,ii.Whether the trial Magistrate erred in upholding the respondent’s preliminary objection on the ground that the suit was time-barred,iii.Whether the provisions of section 26 of the Limitation of Actions Act, are applicable to the appellant’s claim, andiv.Whether the trial court correctly calculated the date on which the cause of action accrued. 24.The first and most fundamental issue for determination is whether the appellant’s claim against the respondent lies in tort or in contract. 25.This court has carefully examined the plaint filed before the trial court in Milimani CMCC No. 3936 of 2023. 26.The appellant alleged that she consulted the respondent on 17th November 2018 for Intrauterine Insemination (IUI) services and provided specific donor specifications. 27.She further alleged that the respondent acted contrary to her specifications, failed to scrutinize donor samples for pre-existing illnesses, and as a result, she gave birth to a child whose race did not meet her specifications and who has a medical condition. 28.The appellant sought general damages for distress and psychological suffering, as well as damages for breach of contract and punitive and exemplary damages. 29.The classification of a cause of action is critical because section 4 of the Limitation of Actions Act provides different limitation periods for different causes of action. 30.Section 4(1)(a) provides that actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. 31.Section 4(2) 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. 32.The trial court, relying on the Court of Appeal case of Diana Katumbi Kiio v Reuben Musyoki Muli [2018] eKLR, held that in cases based on tort, the cause of action accrues when damage is first sustained, and therefore found the appellant’s suit, filed on 30th August 2023 in relation to an insemination that occurred in 2018, to be statute-barred. 33.However, a careful reading of the appellant’s pleadings reveals that her claim is not founded exclusively in tort. 34.The appellant expressly pleaded breach of contract, and the relationship between the appellant and the respondent arose from a consensual arrangement whereby the appellant contracted the respondent to provide specific fertility treatment services with particular donor specifications. 35.The respondent’s alleged failure to adhere to those specifications, including the race of the donor and the screening for medical conditions, constitutes a fundamental breach of the implied terms of the contract for medical services. 36.The Court of Appeal in Diana Katumbi Kiio v Reuben Musyoki Muli (supra) similarly grappled with the distinction between contractual and tortious claims, ultimately holding that the characterization of the cause of action determines the applicable limitation period. 37.In the present case, the appellant’s claim for breach of contract would be subject to a six-year limitation period under section 4(1)(a) of the Limitation of Actions Act. 38.The contract was entered into on 17th November 2018, and the alleged breach occurred when the respondent performed the insemination using a donor that did not meet the appellant’s specifications. 39.However, the claim for damages for distress and psychological suffering also sounds in negligence, a tort, which attracts a three-year limitation period under section 4(2). 40.The trial court erred by treating the appellant’s claim as exclusively sounding in tort without considering the contractual foundation of the parties’ relationship. 41.The claim is properly characterized as a hybrid claim, with both contractual and tortious elements, and the applicable limitation period should be determined by the predominant nature of the claim. 42.Nevertheless, this court must observe that the current legal framework in Kenya is ill-suited to address the unique challenges presented by assisted reproductive technology disputes. 43.The existing law of contract and tort was developed to address traditional commercial and personal injury claims, not the complex ethical, medical, and personal dimensions of fertility treatment. 44.The appellant’s case powerfully illustrates the inadequacy of the current legal framework. 45.The Artificial Reproductive Technology Bill, which has been proposed for enactment in Kenya, would, if passed into law, fundamentally change the legal landscape by providing specific statutory provisions governing fertility treatment, including standards of care for fertility clinics, donor screening requirements, disclosure obligations, and limitation periods specifically tailored to ART disputes. 46.This court notes that the proposed Bill would introduce provisions addressing the timing of the accrual of causes of action in ART cases, recognizing that in matters involving the birth of a child following fertility treatment, the full extent of the harm or breach may only become apparent years after the treatment was administered. 47.The enactment of such legislation is long overdue, and this court strongly urges Parliament to expedite the passage of the Artificial Reproductive Technology Bill to provide clarity and protection for all parties involved in ART in Kenya. 48.The second issue for determination is whether the trial Magistrate erred in upholding the respondent’s preliminary objection on the ground of limitation. 49.The principles governing preliminary objections are well-settled in Kenyan jurisprudence. In the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that 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. 50.Sir Charles Newbold, P, added that a preliminary objection is in the nature of what used to be a demurrer, raising a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 51.In the present case, the respondent’s preliminary objection was based on the ground that the appellant’s cause of action was statute time-barred under section 4 of the Limitation of Actions Act. 52.However, the determination of whether a suit is time-barred in a case involving allegations of negligence, fraud, or mistake is not always a pure point of law that can be determined without ascertaining facts. 53.As the Court of Appeal emphasized in Mukisa Biscuits (supra), a preliminary objection cannot be raised if any fact has to be ascertained. 54.The appellant argued, and this court agrees, that the issue of when the cause of action accrued requires the court to ascertain when the appellant discovered, or could with reasonable diligence have discovered, the alleged mistake or fraud by the respondent. 55.The appellant contended that she only discovered that the child was of mixed race, contrary to her specifications, on 16th June 2021 when DNA test results were obtained. 56.This is a factual question that cannot be determined on a preliminary objection without calling evidence. 57.The trial Magistrate therefore erred by upholding the preliminary objection without considering that the determination of the limitation issue required the ascertainment of contested facts, namely, when the appellant discovered the alleged mistake. 58.The third and perhaps most crucial issue is whether the trial Magistrate erred in failing to apply section 26 of the Limitation of Actions Act to the appellant’s claim. 59.Section 26 of the Limitation of Actions Act provides as follows:“Where, in the case of an action for which a period of limitation is prescribed, either—(a)the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or(b)the right of action is concealed by the fraud of any such person as aforesaid; or(c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.” 60.The trial court did not address itself to the provisions of section 26, despite the appellant’s argument that the period of limitation only began to run when she discovered the mistake after the DNA test results. 61.The respondent argued that section 26 only governs causes of action founded on fraud or mistake, whereas the appellant’s pleadings were entirely based on the tort of negligence, and that the appellant could not introduce fraud or mistake at the appellate stage. 62.This court finds this argument to be overly technical and inconsistent with the substantive justice imperatives of the civil procedure regime. 63.The appellant’s pleadings, while primarily framed in negligence, also allege that the respondent acted contrary to her specifications regarding the donor’s race. 64.The act of using a donor of a different race than the one specified by the appellant, without disclosure to the appellant, constitutes a mistake at the very least, and arguably amounts to fraudulent misrepresentation. 65.The respondent, as a fertility clinic, held itself out as possessing specialized knowledge and expertise in assisted reproductive technology. 66.The appellant relied on the respondent’s representations that it would comply with her donor specifications. 67.When the respondent failed to do so and did not disclose this failure to the appellant, the respondent effectively concealed the mistake from the appellant. 68.The cause of action could not have accrued until the appellant discovered, or with reasonable diligence could have discovered, the mistake. 69.The appellant gave birth to the child on 25th August 2019. Even if she had suspicions about the child’s race at that time, this court cannot say as a matter of law that she could with reasonable diligence have discovered the respondent’s mistake without obtaining a DNA test. 70.The child’s race may not have been immediately apparent at birth, and the appellant may have harbored doubts that she could not confirm without scientific testing. 71.The DNA test was conducted on 16th June 2021, and it is on that date that the appellant discovered, as a matter of certainty, that the child was of mixed race, contrary to her specifications. 72.The appellant filed her suit on 30th August 2023, which is less than three years from 16th June 2021. 73.Even applying the three-year limitation period for tort, the suit would be within time if the limitation period is calculated from 16th June 2021. 74.More importantly, the six-year limitation period for breach of contract, calculated from the date of the contract on 17th November 2018, would extend to 17th November 2024, meaning the suit filed on 30th August 2023 is also within the contractual limitation period. 75.The trial Magistrate erred by failing to consider that the limitation period did not begin to run until the appellant discovered the mistake on 16th June 2021, or alternatively, by failing to recognize that the six-year contractual limitation period had not expired. 76.The trial Magistrate’s reliance on Diana Katumbi Kiio v Reuben Musyoki Muli (supra) was misplaced because in that case, the court was dealing with an agreement for sale of land where the alleged breach was known or ought to have been known to the plaintiff much earlier. 77.In the present case, the nature of the alleged breach was the use of a donor of the wrong race which was not and could not have been known to the Appellant until the child was born and DNA testing was conducted. 78.This court urges Parliament to prioritize the enactment of this legislation to protect the rights of all parties involved in ART in Kenya. 79.For now, however, the existing law, properly interpreted, permits the appellant’s claim to proceed to trial where the truth of her allegations can be tested through evidence. 80.The appellant deserves her day in court, and this court has restored that opportunity. 81.Consequently, this court makes the following orders;i.The appeal is hereby allowed.ii.The ruling and judgment of the learned Principal Magistrate delivered on 20th September 2024 in Nairobi CMCC No. 3936 of 2023 is hereby set aside in its entirety.iii.The respondent’s notice of preliminary objection dated and filed before the trial court is hereby dismissed.iv.Nairobi CMCC No. 3936 of 2023 is hereby reinstated and shall be heard on its merits before a different Magistrate of competent jurisdiction at the Milimani Commercial Courts.v.The trial court is directed to fix the matter for case management conference within thirty (30) days of the date of this judgment to facilitate expeditious hearing and determination of the suit.vi.The appellant is awarded costs of this appeal, to be assessed by the trial court.vii.The costs of the trial court proceedings shall be in the cause. 82.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Mr. Mahugu for the Appellant.No appearance for the Respondent.Chrispine – Court Assistant.