https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7116

Mek Cooperative Savings & Credit Society Ltd v County Government of Kisumu & 5 others (Civil Case E018 of 2024) [2026] KEHC 7116 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 7116 (KLR) Republic of Kenya In the High Court at Kisumu Civil Case E018 of 2024 A Mabeya, J May 15, 2026 Between Mek Cooperative Savings & Credit Society Ltd Plaintiff and County Government Of Kisumu 1st Defendant County Executive Committee Member, Finance 2nd Defendant County Executive Committee Member, Business, Energy & Industry 3rd Defendant County Public Service 4th Defendant Chief Officer, Finance 5th Defendant and Commissioner For Cooperative Development Interested Party Ruling 1.The plaintiff filed suit dated 11/10/2024 seeking recovery of statutory debt amounting to Kshs. 144,313,504.08 from the defendants being amounts owed by the 1st defendant in respect of interest accrued on unremitted Sacco deductions of employees employed by the 1st defendant. 2.The defendants opposed the suit vide a statement of defence filed on the 14/2/2025 and a Notice of Preliminary Objection of the even date, which Notice is the subject of this ruling. 3.The defendants contend that this Court cannot grant the orders sought as the suit is barred by virtue of having been brought 12 years after the cause of action arose contrary to section 4 of the Limitation of Actions Act. 4.In response to the Preliminary Objection, the plaintiff relied on a replying affidavit sworn by Benard Arigora Odari on the 24/4/2025 deposing that although the initial failure to remit deductions occurred between July 2007 and September 2008, the cause of action continued and subsisted and was acknowledged as late as 30/10/2012. 5.That there were multiple interactions on settlement of the sums claimed between the plaintiff and the defendants even with the intervention of the interested party as late as 20/11/2019 thus demonstrating that the cause of action has been alive and acknowledged within the limitation period. That consequently the Preliminary Objection lacks merit and ought to be dismissed. 6.The matter was disposed by oral submissions made on the 16/2/2026. It was submitted on behalf of the defendants that the claim was time barred as it was filed in October 2024 when the debt arose between July 2007 – September 2008. That the Preliminary Objection meets the conditions set out in the case of Mukisa Biscuits as it raises a pure point of law. 7.That the Court ought to ignore the plaintiff’s replying affidavit as it addresses itself to matters of facts instead of points of law as held in the Hydra Industrial Services Case. That even though there was an acknowledgement letter dated 30/6/2012 and acknowledgement on 30/10/2012, time to file suit expired in 2018. 8.That a successor authority inherits liabilities and the act of succeeding the previous local authority cannot create a cause of action thus the commencement date of the cause of action remains either 2008 or 30/10/2012 and in both cases the time limitation has lapsed. Further, that Article 159 cannot override the Limitations of Actions Act as it is not a panacea for non-compliance with statutory provisions. 9.On its part, the plaintiff submitted that the preliminary objection failed the test of Mukisa Biscuits case as it invites the Court to interpret the issue of when the cause of action arose, a disputed fact herein and which is a triable issue. Further, that section 23 (3) of the Limitation of Actions Act provides that where there is an acknowledgement, the cause of action arises on this date. That Article 159 (2) (d) of the Constitution entreats the Court to administer justice without undue regard to procedural technicalities. 10.I have considered the record; it is settled in law in the case of Mukisa Biscuits Co. Limited Vs West End Distributors Ltd (1969) EA 696 that a preliminary objection qualifies as one if it does not require proof to ascertain it by way of calling additional evidence. The court held;“… 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.” 11.Similarly, in the case of Oraro v Mbaja [2005] 1 KLR, the court stated as follows;“I think the principle is abundantly clear. A “preliminary objection” correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed.” 12.Therefore, a preliminary objection ought to be anchored on uncontested facts. Where facts are disputed or where the points of law can only be determined after considering contested facts, then that cannot be a proper preliminary objection. 13.The defendants’ preliminary objection is based on section 4 of the Limitation of Actions Act. The same provides as follows;4 (1)The following actions may not be brought after the end of six years from the date on which the cause of action accrued—(a)actions founded on contract;(b)actions to enforce a recognizance;(c)actions to enforce an award;(d)actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;(e)actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law. 14.The defendants contend that the cause of action arose either in 2008 or on the 30/10/2012 when there was an acknowledgement of the debt. This Court is aware that in Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi [2019] eKLR, it was held as follows:“ 13.The law as I understand it is that the defence of limitation of time is a matter for determination at the trial; it cannot be dealt with in a summary manner or at preliminary stage or as a preliminary objection. The court should formulate limitation as one of the issues for determination and decide it on evidence adduced at the trial.On this see the case of Oruta &Another vs. Nyamato [1998] KLR 590, where the court held that limitation of action: -“… could only be queried at the trial but not by … a preliminary objection … The appellant could raise the objection at the trial and the trial judge would have to deal with the matter on the evidence to be adduced at the trial’’ 14.See also the case of Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997, where the court quoted with approval the words of Gachuhi, J.A., the leading judge in the Oruta case (ibid) that:“It will be up to the judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…” 15.In the present case however, it is admitted that the suit was lodged in October, 2024. It is not in dispute that the debt was last admitted in 2012. That will place the cause of action to subsist for 6 years later expiring in October 2018. That being the case, there is no issue of disputed facts. It is an issue of counting years and that can be done at the preliminary stage rather than wait until the trial. Proceeding with the trial will be but a waste of time. There was nothing to show that the plaintiff was impeded in bringing the suit earlier than 2024. 16.Accordingly, this Court finds the preliminary objection dated 14/1/2025 to be merited and is hereby upheld. The suit is therefore struck out with costs to the defendants.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.A. MABEYA, FCI ArbJUDGE