https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10987

Link Soft Communications Systems Ltd v Siangu & another (Suing as administrators of the Estate of Eliud Mwisa Munyole - Deceased) (Civil Appeal E015 of 2024) [2026] KEHC 10987 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10987 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E015 of 2024 JC Mutai, J July 16, 2026 Between Link Soft Communications Systems Ltd Appellant and Brigid Nanyama Siangu and Beatrice Nanyama Wangila (Suing as administrators of the Estate of Eliud Mwisa Munyole - Deceased) Respondent Judgment Introduction 1.This is an appeal by Link Soft Communications Systems Ltd (hereinafter “the Appellant”) against the decision of the Principal Magistrate Hon. R.K. Langat at the Principle Magistrate’s Court at Sirisia, dated 14th December, 2023 in Civil Suit No E.012 of 2020. The learned Magistrate held that the suit had been filed within time under the relevant laws, that the Appellant was wholly liable for a road accident and that Brigid Nanyama Siangu and Beatrice Nanyama Wangila suing as administrators of the Estate of Eliud Mwisa Munyole (hereinafter “the Respondents”) were entitled to general damages of Kshs. 2,350,000 and special damages of Kshs. 72,975. Background 2.This appeal is solely concerned with the question of limitation of time. I shall therefore provide a substantive background and thereafter directly go to Submissions of the parties with regard to that question at the trial court, the decision thereon, the grounds of appeal, thereafter to the parties’ Submissions before me after which I shall conclude with my determination. 3.On or about 19th March 2017, Eliud Mwisa Munyole (hereinafter “the deceased”) was riding a motorcycle with a pillion passenger heading towards Chwele along the Kimilili-Chwele road. 4.Regrettably, the deceased and his pillion passenger were hit by motor vehicle KCG 105N. The pillion passenger succumbed shortly after while the deceased died on 20th March 2017 while receiving treatment at Lugulu Mission Hospital. 5.The Respondents obtained a limited grant of letters of administration ad litem on 10th November 2020. 6.On 1st December 2020 the Respondents filed a Plaint dated 27th October 2020 in which they averred that the fatal accident on 19th March 2017 was occasioned by the Appellant’s negligence. The Respondents also filed Witness Statements by themselves and one Eliud Sikuku Lumara and several documents to buttress their allegations. 7.The Appellant filed a Memorandum of Appearance dated 23rd March 2022 and later filed a Statement of Defence in which it denied being the owner of said vehicle, denied negligence on its part, imputed negligence on the deceased and notably at paragraph 10 denied jurisdiction of the court stating it would raise a Preliminary Objection as the suit was time-barred. The Appellant also filed a Witness Statement dated 22nd September 2022 by Samuel Kinyanjui who was the driver on the fateful day. 8.From the record, I have seen that the Appellant did not make raise a Preliminary Objection as it had pledged, which is not to say that my decision will turn on this point, but just to point out that the suit proceeded uninterrupted. 9.On 7th December 2022, the Respondent’s witnesses were heard before Hon. C.M. Wattimah and on 21st June 2023 and 13th September 2023 before Hon. R.K. Langat. On 15th November 2023, the Appellant’s witness was to be heard before Hon. R.K. Langat, but the Appellant elected to proceed without calling a witness. 10.The parties were then given opportunity to submit on different facets of the case. Given that the only facet appealed on was the issue of the limitation of time, this is the facet that merits our attention. Submissions by the Parties at the Trial Court a. Submissions by the Respondents 11.I have combed the Record of Appeal for the Respondents’ Submissions at the trial court but I have seen none. After perusing the Judgement I have also seen that the trial court stated that the Respondents failed to submit on the relevant issue and as such we can safely proceed without these Submissions. b. Submissions by the Appellant dated 29th November 2023 12.The Appellant in his submission on the question of limitation of time pointed out that at paragraph 10 of its Statement of Defence it had stated that the trial court had no jurisdiction on the grounds that the suit is time barred. 13.The Appellant submitted that as per paragraph 4 of the Respondent’s Plaint, the cause of action is a tort of negligence arising from an accident which occurred on 19th March 2017. The Appellant stated that the suit was filed on 1st December 2020 contrary to section 4(2) of the Limitation of Actions Act which prescribes that actions founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. The Appellant emphasised that the suit ought to have been filed on or before 20th March 2020. 14.Notably, the Appellant submitted that the suit was instituted without leave of court. The Appellant stated that the court had neither the power to hear the matter nor grant the reliefs sought. 15.The Appellant added that the trial could not proceed as it had no jurisdiction even if the issue would not have been raised. To buttress this point, the Appellant cited the case of Anaclet Kalia Musau v Attorney General & 2 Others [2020] eKLR, Civil Appeal 111 of 2017 where the Court of Appeal cited the Supreme Court case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition No. 19 of 2018 to hold that jurisdiction is everything and a court may even raise an issue of jurisdiction suo moto. 16.The Appellant further relied on the case of Gathoni v Kenya Cooperative Cremires Ltd (1982) KLR 104 where Potter JA stated that the rationale of the law limitation of actions was to protect Defendants against unreasonable delay in bringing suits and to ensure that Plaintiffs exercise reasonable diligence and take reasonable steps in their own interests. 17.The Appellant concluded that the suit was brought in violation of the Limitation of Actions Act and as such the court had no power to grant the reliefs sought. The Appellant restated, crucially, that since the suit was filed with no evidence of leave/extension of time the court had no jurisdiction to determine it and grant reliefs sought. The Appellant urged the court to dismiss the suit. Judgement by the Trial Court dated 14th December 2023 18.The learned Margistrate framed four issues for determination namely competency of the suit, liability, quantum and costs. I shall restrict myself to the determination of competency for the reason already stated. 19.The trial court noted that the Appellant had submitted that the suit was time barred by dint of section 4(2) of the Limitation of Causes [sic] Act as it was filed on 1st December 2020 while the accident occurred on 19th March 2017. The trial court further took into account the contention that the suit ought to have been filed on or before 20th March 2017. The trial court also remarked the submission and authorities in support of the contention that it was bereft of jurisdiction and could not issue any relief. 20.The trial court found stated that the suit was brought under the Law Reform Act (hereinafter “LRA”) and the Fatal Accident Act (hereinafter “FAA”). The trial court added that for a claim to be maintained under these legislations it had to be filed not later than six months after the executor or administrator takes out representation unless the proceedings were pending at the date of the death of the deceased. The trial court cited the case of County Government of Kilifi v Edward Fondo Kalama & Another [2021] eKLR. The trial court concluded that since the Respondents took the letter of administration on 12th November 2020 and filed the suit on 1st December 2020, they had complied with the six months requirement under Section 2(3) of the LRA and section 9(2)(b) of the FAA. As such the suit was not time barred. 21.The court thereafter proceeded to make its finding on liability, quantum and costs. Appeal 22.The Appellants dissatisfied with the decision of the learned Magistrate lodged this appeal via a Memorandum of Appeal dated 17th January 2024, raising four grounds of appeal as follows:a.That the Learned Trial Magistrate erred in Law and Fact in failing to appreciate the correct position regarding limitation of actions in tort causes under section 4(2) of the Limitation of Actions Act.b.That the Learned Trial Magistrate erred in Law and Fact in holding that actions under Fatal Accidents Act and the Law Reform Act must be brought within 6 months from the time of taking out administration and overlooked the limitation [sic] of Actions Act.c.That the Learned Trial Magistrate erred in Law and Fact in his interpretation and reliance on the decision in County Government of Kilifi vs. Edward Fondo Kalama & Another (2021) eKLR hence wrongly holding that the suit was competent.d.That the Learned Trial Magistrate erred in law in failing to appreciate that the actions contemplated by section 2(3) of the Law Reform Act and Section 9(2) of the fatal [sic] Accidents Act are actions against the Estate of the deceased person and not actions for the benefit of the Estate of a deceased person. 23.The Appellants prays for the following orders:a.The Judgement and Decree of the Subordinate Court be set aside and substituted with a proper finding by this Honourable Court;b.The Honourable Court be pleased to find that the suit was time barred and be dismissed with costs; andc.Costs of the Appeal be awarded to the Appellant. Submissions 24.This appeal was disposed of by way of written submissions. The Appellant filed written submissions dated 12th January 2026 while the Respondent’s filed written submissions are dated 18th March 2026. Submissions by the Appellant 25.The Appellant has framed two issues for determination which can be collapsed into one which is whether the trial court overlooked the Limitation of Actions Act and erroneously applied provisions of the LRA and FAA. 26.The Appellant submits that the cause of action in this suit is a tort of negligence originating from an accident which occurred on 19th March 2017 as pleaded under paragraph 4 of the Plaint. The Appellant points out that the suit was filed on 1st December 2020, more than three and half years from the date of accident. 27.The Appellant cites Section 4(2) of the Limitation of Actions Act (hereinafter “LAA”) which states that an action founded on tort must be brought within three years of the date the cause of action accrued. The Appellant states that in this matter, the three calendar years ran from 19th March 2017 to 19th March 2020, meaning the suit should have been filed by 20th March 2020. The Appellant states that given that the suit was filed on 1st December 2020, after expiry of the limitation period, without leave of court, the trial court did not have jurisdiction to grant reliefs sought as the suit was time barred. 28.The Appellant faults the trial court for overlooking the LAA and proceeding to misclassify the action as a claim under FAA and LRA and not an action in tort of negligence as covered under the LAA. The Appellant added that the trial court misapprehended section 2(3) of the LRA and Section 9(3) of the FAA which are meant to limit time within which a person can claim against the estate a deceased but do not apply to instances, such as this matter, where a person claims for the benefit of the estate of a deceased. The Appellant stated that the trial court wrongly held, having misapplied the relevant provisions of the LRA and FAA, that the matter was filed within time, being six months of taking out letters of administration. 29.The Appellant also faults the trial court for erroneous interpretation of the decision in County Government of Kilifi vs. Edward Fondo Kalama & Another (2021) eKLR. The Appellant states that the County Government of Kilifi case was an appeal based on whether the trial court had exercised its discretion properly in enlarging/extending time to file a suit that was time barred which the appellate court answered in the negative holding that the discretion was erroneously exercised as reasons for delay were not sufficient to warrant extension of time under the relevant provisions of the LAA thus dismissing the suit. The Appellant further adds that unlike in County Government of Kilifi case, in the present case no leave was sought. 30.The Appellant concludes by asking this court to set aside the trial court’s finding the suit is not time barred and dismiss the suit for being filed outside the three-years period contrary to section 4(2) of the LAA without leave of court. The Appellant relies on Anaclet Kalia Musau v Attorney General & 2 Others [2020] eKLR, Civil Appeal 111 of 2017, Gathoni v Kenya Cooperative Cremires Ltd (1982) KLR 104 where Potter JA and the County Government of Kilifi case to buttress the foregoing submissions. 31.Finally, the Appellant asks this court to set aside the trial court’s finding and apportionment of liability and the award of damages. Submissions by the Respondent 32.The Respondents begin by clarifying in the factual background of their submissions that after the accident one Solomon Mwisa Maaya as the deceased’s administrator instituted a suit being Sirisia PMCC No. E017 in which the defendants were Link Soft Inter Grated Co Ltd and Mark Bowen. The Respondents state that PMCC No. E017 was heard and determined and thereafter they discovered that they had claimed against the wrong defendants on account of an error in the Police Abstract which indicated the Motor Vehicle Registration as KCG 105W instead of KCG 105N. 33.The Respondents stated that upon discovering the error, they filed this suit accompanied by an Application dated 17th July 2020 seeking leave to file this suit out of time. The Respondents affirm that the trial court granted the requisite leave and the matter proceeded. 34.In light of this factual background, the Respondents frame two issues for determination, namely, whether the suit was statute barred despite leave having been granted and who should bear the costs of the suit. 35.With regards to the first issue, the Respondent submits that even though section 4(2) of the LAA limits the time for bringing suits founded on tort to three years from date the cause of action accrued, the same can be extended under section 27 of the LAA where the claim is based on negligence leading to personal injuries and there were material facts of a decisive character out of the Plaintiff’s knowledge. 36.The Respondents submit that it is not in dispute that they sought and obtained leave of the court to file the suit out of time. They add, placing reliance on the case of Wanja vs Kago [2022] KEHC 10332 KLR, that the suit was properly and lawfully before the court and the limitation was cured. 37.The Respondents submit that once leave has been granted, the same remains valid and binding unless set aside on appeal or review and given that the Appellant failed to challenge the order granting leave by way of appeal or an application for setting aside, it cannot now be heard to question the validity of the suit on ground of limitation. The Respondents rely on Veronica Gathoni Mwanig & another v Samuel Kagwi Ngure & another [2016] KEHC 756 (KLR). 38.The Respondents submit that the law is settled that an appellate court will not entertain issues that were not properly raised or determined at the trial stage, particularly where such issues arise from interlocutory orders that were never challenged and as such the issue of limitation cannot be reopened at this stage. 39.The Respondents aver that they did not cause the error in the Police Abstract but it was an inadvertent mistake upon discovery whereof they acted promptly and diligently in moving the court for appropriate orders, which were granted enabling the matter to be heard on its merits. 40.The Respondents submit that denying them the fruits of judgement lawfully obtained would amount to elevating procedural technicalities over substantive justice, contrary to article 159 of the Constitution. 41.The Respondents conclude that the appeal is abuse of court process because the Appellant fully participated in the trial without raising any objection on limitation after leave was granted and is now only seeking to challenge the proceedings following the unfavourable judgement. 42.As regards the issue of cost, the Respondents submit that since the appeal lacks merit it should be dismissed with costs to the Respondents. Determination 43.I have considered the appeal, submissions and decisions relied on by parties. This appeal raises three issues for determination, namely; whether the trial court relied on the right law in dismissing the concerns on limitation of time, whether the Appellant can successfully raise limitation without acknowledging and challenging leave and who should bear costs of this appeal. Whether the Trial Court Relied on the Right Law in Dismissing the Concerns on Limitation of Time 44.The Appellant has faulted the trial court for relying on section 2(3) LRA and section 9(2) of the FAA in holding that as long as the Respondents as administrators instituted a suit within six months of taking grant, then the issue of limitation of time does not arise. The Appellant has stated that these provisions are only applicable when a suit is to be instituted against the estate of a deceased and not when a suit is instituted for the benefit of the estate as is the case before me. 45.I shall reproduce the provisions in their entirety. Section 2(3) of the LRA as read in context provides as follows:Effect of death on certain causes of action(1)Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.(2)Where a cause of action so survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—(a)shall not include any exemplary damages;(b)in the case of a breach of promise to marry, shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; and(c)where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.(3)No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either—(a)proceedings against him in respect of that cause of action were pending at the date of his death; or(b)proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation [emphasis supplied]. 46.I see that the whole of section 2 provides for causes of action which survive a deceased person. Some of the scenarios relate to suits against the estate of the deceased and some to suits for the benefit of the deceased. I agree with the Appellant that the scenario covered in section 2(3) of the LRA is specifically where a person intends to claim against the estate of a deceased person based on a cause of action arising in tort. The effect of section 2(3) of the LRA is that such a person must have instituted proceedings while the deceased defendant was alive or if not, must institute such a proceeding within six months of the executor or administrator taking out representation. As such I find that the trial court was wrong in stating that this provision was applicable in this scenario. 47.Section 9(2) of the FAA provides as follows in context:9(1)Upon the death of any person against whom, were it not for his death, an action would be maintainable by virtue of the provision of this Act, the action shall be maintainable against his estate.(2)No proceedings shall be maintainable in respect of a cause of action which by virtue of the provisions of this section has survived against the estate of a deceased person, unless either-(a)proceedings against him in respect of that cause of action were pending at the date of his death; or(b)proceedings are taken in respect thereof not later than six months after his personal representative took our representation.(3)Where, by virtue of the provisions of this Act, a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of action as would have subsisted if he had died after the damage was suffered. 48.From a reading of these provisions, the whole of section 9 of the FAA is on actions against estate of a deceased. The marginal note to this section reads as follows: “In the event of death, action maintainable against estate…”. Section 9(2) of the FAA can only be invoked in the same scenario I have pointed out at paragraph 46. I therefore hold that the trial court erred in law in relying on section 2(3) of the LRA and section 9(2) of the FAA in finding that as long as the Respondents had filed the suit withing six months of taking grant, the suit could not be time barred; these provisions are not applicable in this case. Whether the Appellant can Successfully Raise Limitation Without Acknowledging and Challenging Leave 49.I have looked at the Record of Appeal and noticed that the Appellant has not included the application for leave to file suit out of time as part thereof, but this is consistent with its argument that no leave was granted, the effect of which I shall comment on shortly. At this point I just want to confirm, having looked at the trial court file, that indeed the Respondents made a Notice of Motion Application dated 17th July 2020 and filed on 2nd December 2020. The Application was accompanied by an Affidavit sworn by Brigid Nanyama Siangu, one of the Respondents, on 17th November 2018, which is a rather odd date, but which oddity is possibly due to an error. The Application sought for leave to lodge the suit out of time in respect of the road accident that occurred on 19th March 2017. 50.From the Record of Appeal at page 49, the learned Magistrate Hon. C.M. Wattimah on 3rd March 2021 allowed the Application as the Record reads thus:3/3/2021Before C.M. WattimahCOURT: RULINGI have looked at the notice of motion dated 17/7/2020, the annexure thereto and the affidavit in support of the said application. I find that the said application has merit, the same is allowed as presented.Ruling and signed in open Court this 3/3/2021 in presence ofMukisu Advocate for the plaintiff.No Appearance for the defendant. 51.The trial court was empowered to entertain the application and make its decision by Section 27(1) and (2) as read with section 28(1) of the LAA which provide as follows:Section 27(1) and (2)(1)Section 4(2) does not afford a defence to an action founded on tort where—(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and(d)the requirements of subsection (2) are fulfilled in relation to the cause of action.(2)The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which—(a)either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and(b)in either case, was a date not earlier than one year before the date on which the action was brought.Section 28(1)An application for the leave of the court for the purposes of section 27 of this Act shall be made ex parte, except insofar as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action. 52.From the foregoing, I hold that leave was sought ex-parte and was granted. The question is whether the Appellant can still raise the defence of limitation of time without acknowledging the leave granted and challenging the facts and arguments which informed granting of the leave. 53.Before proceeding to the crux of this issue, I will address, as a matter or preliminary concern, some of the Respondents’ averments as to how the Appellant should have raised his objection on limitation of time. 54.At paragraph 16 of the Respondents’ Written Submissions the Appellant is faulted for not making an application to set the order granting the leave aside or to appeal against it. 55.With all due respect to the Respondents, this suggestion is not legally sound. As was stated by Lord Denning in Cozens v North Devon Hospital Management Committee and Another (1966) 2 All E. A. 799 at paragraphs 6, 7, 8 and 9:Now I quite agree that in general a party affected by an ex parte order can apply to discharge it. We applied this rule as of course in Peachey's case recently. But the procedure under the Limitation Act 1963 is altogether exceptional. It says in terms that an application shall be made ex parte. This is a strong indication that the Judge is to decide the application on hearing one side only. No provision is made for the defendant being heard: and I do not think we should allow it to be done at this stage. It must be remembered that, even when the Judge grants leave, there is nothing final about it. It is merely provisional. The defendant will have every opportunity of challenging the facts and the law afterwards at the trial. The Judge who tries the case is the one who must rule finally whether the plaintiff has satisfied the conditions for overcoming the time bar. He is not in the least bound by the provisional view expressed by the Judge in Chambers who gave leave — see Re Clark v. Forbes Stuart (Thames Street) Ltd., 1964, 2 All England Reports, p. 282.Suppose we were to allow the defendant to challenge the ex parte order at this stage, we should be putting up an additional hurdle which the legislature have not put up: and I do not think we should do it. We should be requiring the plaintiff to get the view of another Judge in her favour in this way: First, there would be the Judge who grants leave ex parte; second, the Judge who reviews it on hearing the defendant's application to set aside. I do not think this second Judge should be interposed, because he would be faced with a prior decision by a Judge, made after argument, on the very point at issue. If he refused leave, the plaintiff would be out of Court. She would be barred, save for an appeal to this Court. If he granted leave, it might embarrass the: Judge at the trial.In my opinion, therefore, the defendants have no right to apply at this stage to set aside the leave which was given ex parte, The defendants must go on to trial where everything will be open to them. The note in the Annual Practice 1966, page 1999/209E is wrong.On this ground I would dismiss the appeal, we heard argument on the merits. All I would say is that, even if it were open to us (which it is not), I would not have disturbed the leave granted by Mr Justice Nield. There was, I think, a sufficient prima facie case to warrant the grant of leave [emphasis supplied]. 56.This decision has been cited by the Court of Appeal in numerous cases including Bernard M. Mbithi v Mombasa Municipal Council & another [1993] KECA 75 (KLR), where the Kwach JA stated as follows:It would appear that notwithstanding the provisions of section 27 of the Act, the question whether or not the plaintiff was entitled to the extension can only be challenged in the proceedings. This is one of the exceptions to the general rule that a party against whom an ex parte order has been made, can apply to the Court which made the order to set it aside. The Court of Appeal in England in the case of Cozens v North Devon Hospital Management Committee [1966] 2 All ER 799, held that althought [sic] it was a general principle in regard to ex parte orders that the party affected by the order could apply for it to be discharged, yet it would be contrary to the intention of the Limitation Act 1963 to allow a defendant to apply, before the trial of the action, to set aside an ex parte order obtained under section 2(1) giving leave for the purpose of section 1 (1) (a) of the Act [emphasis supplied]. 57.From the foregoing, once leave was granted it was not open to the Appellant to appeal against it, seek review or file an application to set it aside; any contentions it had with regards to the same should have been raised in trial and pursued in cross-examination. On this point I differ with the Respondents. 58.Now to our main concern, on whether the Appellant challenged the leave that was granted. Paragraph 10 of the Statement of Defence which raised the issue of limitation was phrased as follows:The jurisdiction of this Honourable Court is DENIED and at the earlies opportunity the Defendnat shall raise Preliminary objection on jurisdiction of the court to hear and determine a claim that is time barred. 59.The paragraph does not mention whether it challenges the leave that was granted, in fact the Appellant proceeded as if leave was not granted in the first place. The Appellant in its Written Submissions before the trial court, at page 45 of the Record of Appeal, stated:Clearly, this suit was instituted without leave of court and was time barred in contravention of the above cited section [emphasis supplied]. 60.In its conclusion at page 47 of the Record of Appeal, the Respondent stated:The upshot of the Defendant’s submissions is that since the suit was filed out of time without any evidence of leave/extension of time, This [sic] court has no jurisdiction to determine it and the reliefs sought are not available for granting. This suit should be dismissed [emphasis supplied]. 61.In its Written Submissions at this appeal, the Appellant at page 2 and 3 states:Your Ladyship,The action having been filed outside the limitation period of three years without leave of court implies that the court could not have had jurisdiction to grant reliefs sought o the remedy as the action/suit was time-barred and leave for enlargement of time having not been sought as required under the limitation of Actions Act [emphasis supplied]. 62.I will also cite verbatim, the Appellant’s Written Submission at page 3 where it faults the trial court for misinterpreting the case of :QUOTEYour Ladyship,On whether the Learned Trial Magistrate erred in Law and Fact in his interpretation and reliance on the decision in County Government of Kilifi vs. Edward Fondo Kalama & Another (2021) Eklr hence wrongly holding that the suit was competent, we submit that the cited case was a consideration of the appeal on whether the trial magistrate had exercised her discretion properly in enlarging/extending time to file a suit that that was time barred. The learned judge found the discretion to enlarged time was erroneous as the reasons for the delay were not sufficient as to satisfy the conditions set out under the Limitation of Actions Act on extension of time. The high court proceeded to dismiss the suit despite leave having been granted unlike in the current case where no leave was sought [emphasis supplied]. 63.The Appellant in its conclusion also submits:Your Ladyship,We submit in conclusion that the holding by the trial magistrate that the suit is not time barred is erroneous in fact and in law as explained hereinabove. We urge your Ladyship to set aside that finding and we pray for the dismissal of the suit for being filed outside the 3 year period required for actions on tort under section 4(2) of the Limitation of Actions Act and filed without leave of the court [emphasis supplied]. 64.From the foregoing, the Appellant is proceeding on the assumption that leave was neither sought nor granted. This assumption is not supported by facts. Leave was sought and it was granted. If challenge against the leave was not raised, there is no remedy that this court can give. Even at this point the leave has not been challenged. This court can only pronounce itself on questions put before it. 65.If I were to frame, suo moto, the question of whether the trial court exercised its discretion rightly in granting leave, I will have stepped into the arena and will be litigating for the Appellant. This court cannot undertake such a task. As was stated in County Government of Siaya v Ondiek (Environment & Land Case E009 of 2021) [2023] KEELC 21938 (KLR) (30 November 2023) (Judgment) at paragraph 12:It is settled law parties are bound by their pleadings and as a court, I am restrained from entering into the arena of litigation. The plaintiff was required to prepare its case and as it did so, the onus was on it to take steps it deemed necessary and to ensure it presented facts which supported its claim… 66.The Appellant had a duty at trial to peruse the court file to ascertain whether the Respondents had applied for leave to file the suit. After which it should have brought to the fore any contentions it had with the facts upon which that leave was sought. This was very necessary considering that these applications are always made ex parte and that the learned Magistrate who was initially in charge of the matter was transferred to another station and the matter taken over by another Magistrate. It was in the Appellant’s best interest to diligently pursue its defence on limitation and challenge the facts that informed the provision leave. I find that the Appellant fatally let itself down by failing to confirm if leave was sought and granted. 67.I reiterate that the issue whether the suit was filed out of time as proscribed under section 4(2) of the LAA and the issue whether leave was rightly granted under section 27 of LAA to file the suit are two different questions. The latter would require substantive arguments on whether the reasons given by the Respondents in their Application dated 17th July 2020 satisfy the strict definition of ignorance of material facts of a decisive nature as defined under section 27 and 30 of the LAA. This is an issue which must be raised specifically. 68.The Supreme Court of India expressed itself on the question of issues before a court in Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & Another, Civil Appeal Nos. 5710-5711 of 2012 [2014] 2 S.C.R as follows at paragraph 9:This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been “materially affected”. There can be no dispute to the settled legal proposition that “as a rule relief not founded on the pleadings should not be granted”. Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings …[emphasis supplied] 69.The Memorandum of Appeal and even the Submissions by the Appellant have not invited this court to consider whether the trial court exercised its discretion to grant leave under section 27 of the LAA rightly. As such, given that the leave granted was not challenged I cannot grant the Respondent’s request to dismiss the suit based on section 4(2) of the LAA. I therefore dismiss this appeal. Who Should Bear Costs of this Appeal 70.Given my findings, I award costs of this Appeal to the Respondents. DATED, SIGNED AND DELIVERED AT KERICHO VIRTUALLY THIS 16TH DAY OF JULY, 2026CHELANGAT MUTAIJUDGE16/7/2026In the presence ofKurgat for the AppellantMomanyi for the RespondentC/A Irene Chelangat