https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8514

Mint Bakeries v Mbithi alias Joseph Nzioka Mbithi (Suing on behalf of the Estate of Bibiana Kasungwa Nzioki (Deceased)) & another (Civil Appeal E131 of 2024) [2026] KEHC 8514 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8514 (KLR) Republic of Kenya In the High Court at Makueni Civil Appeal E131 of 2024 RA Oganyo, J June 12, 2026 Between Mint Bakeries Appellant and Josephat Nzioka Mbithi alias Joseph Nzioka Mbithi (Suing on behalf of the Estate of Bibiana Kasungwa Nzioki (Deceased)) 1st Respondent Antony Mutunga Kavunda 2nd Respondent (Being an appeal from the ruling of the Chief Magistrates Court in Makueni (Hon Martin N. Mutua (SRM) delivered on 8th November 2021 (Sic) in Civil Case No. E080 of 2021) Ruling 1.This appeal arises from the ruling of the learned Senior Resident Magistrate, Hon Martin N. Mutua delivered on 8th November 2021(sic) in Makueni Civil Case No. E080 of 2021 (in respect of a Preliminary Objection dated 19th August 2024 as per the record). The Appellant, Mini Bakeries, being aggrieved by the said ruling, challenges the decision of the trial court which dismissed its Preliminary Objection. 2.The Court notes a discrepancy in the record regarding the date of the impugned ruling. While the ruling is indicated as having been delivered on 8th November 2021 (sic), the proceedings on record reflect that the matter was scheduled for ruling on 18th October 2024. The Court shall proceed on the basis of the record as filed 3.The genesis of the underlying dispute was a road traffic accident that occurred on or about 14th February 2017 along Kithuki - Matheani Road involving motor vehicle registration number KCC 856N and motor cycle registration number KMDJ 517R (Skygo). At the material time, the deceased, Bibiana Kasungwa Nzioka, was travelling as a pillion passenger on the said motor cycle when motor vehicle registration number KCC 856N allegedly veered off its lane and collided with the motor cycle, causing fatal injuries to the deceased. 4.The 1st Respondent, acting as legal representative of the estate of the deceased, instituted the suit seeking general and special damages, costs, and interest. The 2nd Respondent, who was enjoined as a third party, filed a defence and counterclaim dated 15th July 2024 in which he claimed that he was the registered owner and rider of motorcycle KMDJ 517R at the time of the accident, and that he suffered personal injuries including tissue injury to the right thumb and bruises to the knee and thigh. 5.Following the filing of the counterclaim, the Appellant raised a Notice of Preliminary Objection dated 19th August 2024 challenging the jurisdiction of the court to entertain the counterclaim on the basis that it was statute barred under section 4(2) of the Limitation of Actions Act, as the cause of action arose on 14th February 2017. The trial court heard the objection and dismissed it with costs in a ruling delivered on 8th November 2021 [sic]. Aggrieved by that decision, the Appellant lodged the present appeal. 6.The Appellant’s case is anchored on seven primary grounds articulated in the Memorandum of Appeal dated 22nd November 2024 and amplified in the written submissions dated 26th August 2025. These are as follows: -i.The Learned Trial Magistrate erred in failing to uphold the preliminary objection raised by the Appellant.ii.The Learned Trial Magistrate erred in considering irrelevant factors and in some instances failed to consider the relevant factors hence arriving at an erroneous decision.iii.The Learned Trial Magistrate erred in failing to appreciate that the limitation of action as envisaged under section 4(2) of the Limitation of Actions Act runs from the date of the accident, that is 14/02/2017, and not from the date of filing of the primary suit by the third party on 15/07/2022.iv.The Learned Trial Magistrate erred in failing to appreciate that the counter-claim filed by the third party/respondent was for recoupment of damages occasioned to the third party by the Appellant in the subject accident and was therefore brought outside the limitation period provided under section 4(2) of the Limitation of Actions Act.v.The Learned Trial Magistrate erred in failing to hold that the third party/respondent was out of time as the claim was already statute-barred by dint of section 4(2) of the Limitation of Actions Act.vi.The Learned Trial Magistrate erred in law in failing to consider the submissions of the Appellant and the court proceedings which clearly showed that the third party had already participated and testified in the suit on 18/10/2022 as a witness for the respondent’s case and was therefore aware of the existence of the case and all material facts thereto.vii.The Learned Trial Magistrate consequently erred in law and in fact in awarding costs thereto. Appellant’s Case 7.The Appellant submitted that the counterclaim by the 2nd Respondent was statute barred under Section 4(2) of the Limitation of Actions Act, as the cause of action arose from a road traffic accident of 14/02/2017 yet the claim was introduced more than seven years later. It was argued that time began to run from the date of the accident and lapsed on 14/02/2020. The Appellant further contended that under Section 35 of the Limitation of Actions Act, a counterclaim is treated as a separate action and must independently comply with limitation requirements, failing which it is incompetent and outside jurisdiction. 8.The Appellant maintained that the 2nd Respondent’s claim was an attempt to advance a belated personal injury claim within existing proceedings without obtaining leave for extension of time. It was further argued that the delay was inordinate and inexcusable, and that equity aids the vigilant and not the indolent. The Appellant relied on Hilton v Sultan S. Tean Laundry (1946) 1 KB 61 for the principle that once limitation has lapsed, the right of action is extinguished and the defendant is entitled to rely on the statutory bar as a complete defence. 9.To reinforce this position, the Appellant relied on Gladys Njeri Kirugumi v Langata Development Company Limited & another [2018] KEELC 3262 (KLR), where the court held that a counterclaim is a distinct action that must comply with limitation laws and is time barred if filed outside the statutory period, whether within an existing suit or independently. The Appellant further urged the Court to find that the trial magistrate erred in failing to uphold the preliminary objection and to set aside the ruling delivered on 08/11/2021 [sic], with costs of the appeal and proceedings below. The 2nd Respondent’s Case 10.The 2nd Respondent opposed the appeal and supported the ruling of the learned trial magistrate, submitting that the court properly exercised its discretion in allowing the filing of his counterclaim. He stated that he had been enjoined in the lower court proceedings after having already testified, and that vide court directions issued on 26/09/2023 and 21/05/2024, the trial court permitted all parties to file pleadings afresh and directed that the matter proceed de novo. On that basis, he argued that he had the benefit of leave to file his counterclaim, and that any procedural concerns raised by the Appellant were cured under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution, as no party was to be prejudiced where the court had reopened the entire case. 11.The 2nd Respondent further contended that his counterclaim, being grounded in negligence, fell within the statutory framework of Section 27 of the Limitation of Actions Act, which allowed extension of time in actions for personal injuries. He submitted that the court had jurisdiction to enlarge time where the interests of justice required, and relied on Wanjohi v Pharis (Environment and Land Miscellaneous Application E001 of 2025) [2025] KEELC 679 (KLR) and Mary Ojundwa v Nzoia Sugar Company Ltd Civil Appeal No. 244 of 2000, where the courts affirmed that limitation does not bar claims where leave or extension is properly granted and discretion is exercised within statutory limits. He also relied on DT Dobie & Company (Kenya) Ltd v Muchina & Another (1982) eKLR, arguing that a claim should not be struck out where it disclosed an arguable cause of action capable of being sustained by amendment. 12.Finally, the 2nd Respondent submitted that costs of the appeal should not be awarded to the Appellant. He argued that costs were discretionary and depended on the circumstances of each case, relying on Morgan Air Cargo Ltd v Everest Enterprises Ltd [2014] KEHC 8693 (KLR). He maintained that the Appellant had challenged procedural directions properly issued by the trial court, and that the appeal was premature, unjustified, and contrary to the overriding objective of the court process. He therefore urged that the appeal be dismissed with costs. Issues for Determination 13.Having considered the pleadings, the record of appeal, the submissions by counsel for the Appellant and the 2nd Respondent, and the applicable law, the Court is of the view that the following issues arise for determination:i.Whether the Learned Trial Magistrate erred in failing to uphold the Appellant’s Preliminary Objection dated 19/08/2024 on limitation.ii.Whether the 2nd Respondent’s counterclaim was statute-barred under Sections 4(2) and 35 of the Limitation of Actions Act.iii.Whether the trial court erred in holding that the 2nd Respondent had leave (express or implied) to file the counterclaim out of time. Analysis and Determination 14.In determining this appeal, it is necessary to restate the principles governing the exercise of discretion by a trial court set out in Mbogo & Another v Shah [1968] the Court of Appeal stated thus regarding exercise of judicial discretion: -“...a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been miscarriage of justice....” 15.The Court now turns to the first issue for determination, namely whether the Learned Trial Magistrate erred in failing to uphold the Appellant’s Preliminary Objection dated 19/08/2024 on limitation. 16.The law on preliminary objections is well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court of Appeal held that a preliminary objection consists of a pure point of law which is capable of disposing of a suit at the outset, including objections on jurisdiction and limitation. Similarly, in Oraro v Mbaja [2005] eKLR, Ojwang J (as he then was) emphasized that a preliminary objection must not be blurred with factual disputes requiring evidential proof, and that any such attempt ceases to be a proper preliminary objection in law. 17.From the foregoing, it is evident that a valid preliminary objection must raise a pure point of law, proceed on the assumption that facts as pleaded are correct, and must not require the Court to interrogate contested facts or exercise discretion dependent on evidential evaluation. 18.Applying the above principles to the present appeal, the Appellant’s Preliminary Objection was anchored on limitation under Section 4(2) of the Limitation of Actions Act and the legal effect of counterclaims under Section 35 thereof. These are issues of law apparent on the face of the record and do not require the calling of evidence for their determination. 19.It is not in dispute that the cause of action arose on 14/02/2017, while the 2nd Respondent’s counterclaim was introduced on 15/07/2024. On a plain reading of Section 4(2), any action founded on tort must be brought within three years from the date the cause of action accrues. The counterclaim was therefore instituted long after the expiry of the statutory period. 20.Further, Section 35 of the Limitation of Actions Act is explicit that a counterclaim is treated as a separate action. It follows that such a claim must independently satisfy limitation requirements and cannot derive validity merely from being raised within existing proceedings. Where a claim is statute-barred, it is legally incompetent and incapable of being sustained before a court of law. 21.In light of the foregoing statutory framework, the Court finds that the Preliminary Objection raised a clear point of law within the meaning of Mukisa Biscuit (supra), capable of disposing of the counterclaim at the threshold. The Learned Trial Magistrate therefore erred in failing to uphold the Appellant’s Preliminary Objection dated 19/08/2024 on limitation. Accordingly, this issue is resolved in favour of the Appellant. 22.I now turn to the second issue of this appeal, which calls upon this Court to determine whether the 2nd Respondent’s counterclaim was statute-barred under Sections 4(2) and 35 of the Limitation of Actions Act. 23.The Appellant submitted that the counterclaim is plainly statute barred, the cause of action having arisen on 14/02/2017, the date of the accident, and the counterclaim only having been introduced on 15/07/2024, well outside the statutory limitation period of three years. The Appellant further contends that under Section 35 of the Act, a counterclaim is treated as a separate action and must independently comply with limitation requirements, failing which it is incompetent and outside the jurisdiction of the court. 24.On the other hand, the 2nd Respondent opposed the appeal and submitted that the counterclaim was properly admitted pursuant to directions issued by the trial court on 26/09/2023 and 21/05/2024, which reopened the proceedings and directed that parties file pleadings afresh. It was therefore his position that any limitation objection was cured by those directions, and that the court acted within its discretion under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution to ensure substantive justice. 25.In resolving this issue, it is necessary to restate the statutory framework. Section 4(2) of the Limitation of Actions Act provides that an action founded on tort may not be brought after the end of three years from the date the cause of action accrued. In the present case, it is not disputed that the accident occurred on 14/02/2017, which is when the cause of action arose. The counterclaim, however, was introduced on 15/07/2024, clearly outside the statutory period. 26.In Michael Cherogony v Teachers Service Commission [2015] eKLR, the court held that:“Section 4(2) of the Limitation of Actions Act provides that actions based on tort may not be brought after the expiry of three years from the date on which the cause of action accrued.” 27.Section 35 of the Limitation of Actions Act further provides that any claim by way of set-off or counterclaim is to be treated as a separate action and is deemed to have been commenced on the date the original action was filed. The effect of this provision is that a counterclaim must independently satisfy the limitation period applicable to it and cannot derive validity merely from being introduced within existing proceedings. 28.The Court further notes Order 7 Rule 12 of the Civil Procedure Rules, which provides that where a counterclaim is raised, a party may apply for its exclusion on the basis that it ought properly to be determined in an independent suit, and the Court may make such order as is just. The import of this provision is that even procedurally, a counterclaim is not immune from challenge and may be struck out or excluded where it offends legal requirements, including limitation of actions. 29.In light of the foregoing statutory framework, submissions by counsel, and the authorities cited, this Court finds that the 2nd Respondent’s counterclaim, having been filed more than seven years after the cause of action accrued and without lawful extension of time, was statute-barred under Sections 4(2) and 35 of the Limitation of Actions Act. It was therefore incompetent and incapable of being sustained before the trial court. The appeal in this limb succeeds. 30.The final issue for determination is whether the Learned Trial Magistrate erred in law and in fact in holding that the 2nd Respondent had leave, whether express or implied, to file his counterclaim out of time, and whether such discretion was properly exercised. 31.It is the Appellant’s position, as already captured in the record, that the counterclaim was filed well outside the statutory limitation period prescribed under Section 4(2) of the Limitation of Actions Act, and that no lawful extension of time was ever obtained under Section 27 of the Act. The Appellant further contends that a court cannot, under the guise of discretion, or reliance on procedural directions, validate a claim that is already extinguished by operation of law. 32.On the other hand, the 2nd Respondent maintained that the trial court had, through directions issued on 26/09/2023 and 21/05/2024, reopened the proceedings and directed parties to file pleadings afresh, thereby granting him an opportunity — express or implied — to file his counterclaim. He further relied on Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution, urging the Court to uphold substantive justice over procedural technicalities. 33.The Court has carefully considered these appellant’s and respondent’s positions. It is trite that Section 3A of the Civil Procedure Act preserves the inherent jurisdiction of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Similarly, Sections 1A and 1B of the Civil Procedure Act, together with Article 159(2)(d) of the Constitution, require courts to facilitate substantive justice without undue regard to procedural technicalities. 34.However, it is equally well settled that these provisions do not operate in a vacuum, nor do they confer unlimited discretion to disregard clear statutory timelines. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR, the Court of Appeal cautioned that Article 159(2)(d) was never intended to aid litigants in the disregard of procedural rules and timelines, and that rules of procedure exist to ensure certainty, fairness, and predictability in litigation. 35.The Supreme Court in Raila Odinga & 3 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR similarly emphasized that Article 159(2)(d) does not oust the obligation of parties to comply with procedural requirements, and cannot be used as a panacea for non-compliance with clear legal provisions. 36.In addition, Section 3A of the Civil Procedure Act, while vesting inherent powers in the Court, does not donate jurisdiction where none exists. It cannot be invoked to cure a claim that is already time-barred under statute, as limitation goes to the root of a cause of action and extinguishes the right to sue. 37.The Court also takes cognizance of the principle reiterated in Philip Chemeno & Another v Augustine Kubende, where it was held that blunders and procedural missteps should not necessarily defeat substantive justice, as courts exist to determine rights and not to punish parties for technical errors. However, that principle must be applied within the confines of the law and cannot override express statutory limitation provisions. 38.Applying the foregoing principles to the present appeal, it is evident that the directions relied upon by the 2nd Respondent, while permitting filing of pleadings afresh, did not and could not amount to an extension of time under Section 27 of the Limitation of Actions Act. There is no record of an application for leave to file a time-barred claim, nor any judicial determination expressly enlarging time for purposes of the counterclaim. 39.In the absence of such lawful extension, the trial court lacked jurisdiction to implicitly validate a claim that had already been extinguished by operation of Section 4(2) of the Limitation of Actions Act. Procedural directions, however broad, cannot revive a cause of action that is statutorily barred. 40.Accordingly, this Court finds that the Learned Trial Magistrate erred in holding that the 2nd Respondent had leave, whether express or implied, to file the counterclaim out of time. The exercise of discretion was therefore not properly founded in law, and resulted in an erroneous assumption of jurisdiction over a time-barred claim. 41.This issue therefore succeeds in favour of the Appellant. Disposition 42.. Having carefully considered the record of appeal, the submissions by counsels, and the applicable law, and having found that the 2nd Respondent’s counterclaim was statute-barred under Sections 4(2) and 35 of the Limitation of Actions Act and that no lawful extension of time was granted, this Court makes the following orders:i.The appeal is hereby allowed.ii.The ruling and order of the Learned Trial Magistrate delivered on 8th November 2021 (sic) in Makueni Civil Case No. E080 of 2021 dismissing the Appellant’s Preliminary Objection is hereby set aside.iii.The Appellant’s Preliminary Objection dated 19th August 2024 is hereby upheld.iv.The 2nd Respondent’s counterclaim dated 15th July 2024 is struck out for being statute-barred.v.The Appellant shall have costs of this appeal and costs of the proceedings before the trial court during the hearing of the P.O. DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS AT NAIROBI ON THIS 12TH DAY OF JUNE, 2026.HON. R. A. OGANYO, MRS.JUDGEIn the presence of:Court Assistant:Counsel for the Appellant: Miss Omollo h/b for Miss Kahiti for the AppellantCounsel for the Respondents: Miss KyaloN/A for 2nd Respondents though notified by 1st Respondent’s counsel