https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12933

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **COMMERCIAL AND ADMIRALTY DIVISION** **COMMERCIAL SUIT NO. E753 OF 2025** **BHACHU INDUSTRIES LIMITED............PLANTIFF/RESPONDENT** **VERSUS** **METRO LOGISTICS LIMITED................DEFENDANT/APPLICANT** **RULING** 1. The Defendant filed a Notice of Preliminary Objection dated 9th February 2026 on the following grounds 2. *There is no cause of action against the Defendant herein.* 3. *The court lacks the requisite jurisdiction to entertain this suit, as it was filed outside the six (6)-year statutory period, and is thus statute-barred, fatally defective, misconceived, and an abuse of the court process, as the cause of action arose between May 2017 and November 2018. The suit ought to be struck out with costs.* 4. Parties filed submissions. The Defendant submits that the suit is incompetent and ought to be struck out at the preliminary stage for being statute-barred under **Section 4(1)(a) of the Limitation of Actions Act**. It argues that the Plaintiff's claim is founded on an alleged contract for the supply of trucks, trailers and spare parts between **May 2017 and November 2018**, yet the suit was not instituted until **17th November 2025**, more than seven years after the cause of action arose. 5. It is further submitted that the Plaintiff has offered no explanation for instituting proceedings outside the statutory period and has not sought or obtained leave to extend time. In support of its argument on limitation, the Defendant also relies on **Vinu K. Patel v Shiva Carriers Ltd [2012] eKLR**, submitting that limitation statutes extinguish the right to enforce stale claims and that equitable doctrines cannot be invoked to circumvent statutory time limits. It emphasizes that a litigant cannot acquire greater rights than those available under the substantive cause of action once the statutory period has expired. 6. On the other hand, the Plaintiff opposes the Preliminary Objection on the ground that it is misconceived both in fact and law. It submits that the objection is founded on an erroneous computation of time and an incorrect characterization of the cause of action, as it overlooks the parties' continuous commercial dealings, part payments, written acknowledgements of debt and subsequent promises to pay. According to the Plaintiff, these matters require evidentiary interrogation and cannot be determined as pure points of law. 7. The Plaintiff submits that the preliminary objection does not meet the threshold set out in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, as its determination depends on contested facts requiring evidence, including whether the parties maintained a running commercial account, whether the Defendant's payments, dishonoured cheques and correspondence constituted acknowledgements of debt, and whether the settlement agreement dated 11th January 2022 amounted to a statutory acknowledgement or was protected by the "without prejudice" rule. 8. It contends that the suit is not statute-barred because the parties' continuing commercial relationship extended to November 2021, making the cause of action accrue only upon the Defendant's final default. Further, relying on **Sections 23(3) and 24 of the Limitation of Actions Act**, the Plaintiff argues that the Defendant's RTGS payments, issued cheques, letter of 1st October 2021 and settlement agreement of 11th January 2022 acknowledging a debt of **Kshs. 99,267,492.50** restarted the limitation period. 9. The Plaintiff also relies on **Auto Garage v Motokov [1971] EA 514** to submit that the plaint discloses a complete cause of action founded on the supply and delivery of goods, acceptance, acknowledgements of indebtedness and default in payment. It therefore maintains that the suit is neither time-barred nor an abuse of the court process and urges the Court to dismiss the preliminary objection with costs. **Analysis and determination** 1. The law on Preliminary Objections is well settled. In the locus classicus case of**Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,**the Court, Sir Charles Newbold, P. stated at page 700 held that: ***“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. This principle was reiterated in **Oraro v Mbaja[2005] 1 KLR 141**, where the Court held that a Preliminary Objection must be based on a settled and clear legal point and not on contested facts. 2. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. (See **Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd[1989] KLR 1).** 3. The issue of limitations goes to the jurisdiction of the Court as was held in the case of **Sohanladurgadass Rajput & Anor vs Divisions Integrated Development Programmes Co. Ltd (2021) eKLR**: ***“The question of limitation is a question that goes to the jurisdiction of this Court. It is a clear point of law, which if argued as Preliminary Objection point may dispose of the suit.”*** 1. Going by the above decision, it is my view that the objection raised is well taken since it raises the question of jurisdiction and a plea of limitation 2. The next issue for consideration is whether the suit is time barred. In **Gathoni vs Kenya Co-operative Creameries Ltd [1982] KLR 104*,*** Potter, JA at page 107 expressed himself thus: ***“The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.”*** 1. **Section 4(1) (a)** of the **Limitation of Actions Act**, provides as follows: ***(1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued—*** 1. ***actions founded on contract.*** 2. The Defendant contends that the Plaintiff's claim arises from contracts performed between May 2017 and November 2018 and that the suit, filed on 17th November 2025, is plainly outside the six-year limitation period prescribed under Section 4(1)(a) of the Limitation of Actions Act. On that basis, it argues that the Court lacks jurisdiction to entertain the suit. 3. The Plaintiffs assert that the parties maintained a continuing commercial relationship extending to late 2021, that the Defendant made part payments, issued cheques, acknowledged the debt in writing, and executed a settlement agreement on 11th January 2022. 4. **Section 23(3)** of the**Limitation of Actions Act** states as follows: ***Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to moveable property of a deceased person, and the person liable or accountable therefor acknowledges this claim or makes payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment.*** 1. The cheques issued in repayment of the amount due and the acknowledgement of the debt under a settlement agreement dated 11th January 2022, which accrued before the expiry of the limitation period, had the effect of resetting the limitation period. 2. On the ground that there is no cause of action against the Defendant, a perusal of the Plaint reveals that the Plaintiff has pleaded the existence of a contractual relationship, the supply and delivery of goods, acceptance of the goods, acknowledgements of indebtedness, and the Defendant's default in payment. I am satisfied that the plaint discloses a cause of action against the Defendant. The objection on this ground must therefore fail. 3. In the result, the court finds and holds that the Defendant's Notice of Preliminary Objection dated 9th February 2026 has no merit and is hereby dismissed. 4. The costs of the Preliminary Objection shall be costs in the cause. Orders accordingly. **RULING** delivered virtually, dated and signed at **NAIROBI** This **13th** day of **August** 2026. **PETER M. MULWA** **JUDGE** **In the presence of:** *Mr. Makori* for Plaintiff *Ms. Tuwei h/b for Mr. Kirimi* for Defendant Court Assistant*: Sharon*