https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7699

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION E327 OF 2025** **IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 27, 48, 50, 159, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE CONSTITUTION** **AND** **IN THE MATTER OF SECTION 4(1) AND SECTION 27 OF THE LIMITATION OF ACTIONS ACT, CAP. 22 LAWS OF KENYA** **BETWEEN** **FABIEN NZAYISENGA NZAYISENGA** **FRANCOIS NGIRABATWARE** **(TRADING AS ZEMAN LUBRICANTS)..………………………………………………PETITIONERS** **VERSUS** **NATIONAL YOUTH SERVICE ………………………………………………………… RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. Before this Honourable Court for determination is the Petition dated 15th May 2025 together with the Notice of Motion application of even date, brought pursuant to Articles 22, 23, 48, 50 and 258 of the Constitution of Kenya, 2010, wherein the Petitioners seek, inter alia, constitutional reliefs arising from the intended application of Section 4(1)(a) of the Limitation of Actions Act to their claim against the Respondent. 2. The Court record shows that on 3rd June 2025, this Court directed the Petitioners to effect service of the Petition and the Notice of Motion upon the Respondent for response and further directions. 3. The Court is satisfied that service was duly effected upon the Respondent as evidenced by the Affidavit of Service sworn on 3rd October 2025 by one Oliver Mayombo Mwalakha, which affidavit details the manner and circumstances under which service of the pleadings and court process was effected upon the Respondent. 4. Despite service having been properly effected, the Respondent neither entered appearance nor filed any response, replying affidavit, grounds of opposition, submissions, or any other pleadings in opposition to the Petition and the application herein. 5. Consequently, the Petition and the Notice of Motion remain wholly uncontroverted, and the Court shall therefore proceed to determine the same on the basis of the pleadings, affidavits, annexures, and submissions placed before it by the Petitioners. **THE PETITIONERS’ CASE** 1. The Petitioners’ case is that they are suppliers of construction materials who, pursuant to a contractual arrangement entered into with the Respondent, National Youth Service, on or about 3rd August 2015, supplied goods valued at Kshs. 9,144,000/=. The Petitioners aver that the said goods were duly delivered and acknowledged by the Respondent through delivery notes and invoices executed by the Respondent’s representatives, but despite such delivery and repeated demands, the Respondent has failed and/or neglected to settle the outstanding debt. 2. The Petitioners contend that from the year 2015 to 2024, officers of the Respondent consistently acknowledged the existence of the debt and repeatedly assured the Petitioners that payment would be effected upon completion of internal verification processes. According to the Petitioners, the Respondent’s conduct, representations, and written acknowledgments induced them to refrain from instituting legal proceedings within the statutory limitation period, as they reasonably expected that the matter would be resolved amicably without recourse to litigation. 3. The Petitioners further state that upon the Respondent’s continued failure to honour its obligations, they eventually instituted **Milimani CMCC No. E1768 of 2025** seeking recovery of the outstanding amount. However, they apprehend that the Respondent may raise a preliminary objection under Section 4(1)(a) of the Limitation of Actions Act on grounds that the claim is statute-barred, or that the subordinate court may *suo motu* strike out the suit for having been filed outside the prescribed six-year limitation period for contractual claims. 4. The Petitioners therefore approach this Honourable Court contending that the rigid and mechanical application of Section 4(1)(a) of the Limitation of Actions Act, in the peculiar circumstances of this matter, violates their constitutional rights under Articles 48 and 50(1) of the Constitution. 5. It is their case that the impugned provision unjustifiably denies them access to justice and the right to a fair hearing by barring adjudication of an otherwise meritorious claim solely on account of lapse of time, notwithstanding the Respondent’s repeated assurances and acknowledgment of liability. 6. The Petitioners submit that the Constitution, being the supreme law under Article 2, overrides all statutory provisions inconsistent with it, and that limitation statutes must therefore be interpreted in a manner that promotes constitutional values, substantive justice, and protection of fundamental rights. In support of this proposition, reliance is placed ***on Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012]*** ***eKLR,*** where the Court emphasized that constitutional interpretation must be broad, liberal, purposive, and guided by the values and principles of the Constitution rather than narrow legal formalism. 7. The Petitioners further invoke the doctrine of legitimate expectation, arguing that the Respondent’s repeated assurances and acknowledgments of debt created a legitimate and reasonable expectation that payment would be made without the necessity of litigation. They contend that it would be unconscionable and contrary to the rule of law for the Respondent to induce reliance through promises of settlement and thereafter invoke statutory limitation to defeat the Petitioners’ claim. 8. In support of the doctrine of legitimate expectation, the Petitioners rely on ***Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR),*** wherein the Supreme Court held that legitimate expectation arises where a public authority makes a clear, unambiguous, and lawful representation upon which a party reasonably relies. The Petitioners also rely on ***In re Westminster City Council [1986] AC 668, South African Veterinary Council v Szymanski 2003 (4) SA 42 (SCA),*** ***Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346***, and ***Walele v City of Cape Town 2008 (6) SA 129 (CC)***, for the proposition that fairness demands that public authorities honour representations made within their lawful competence. 9. The Petitioners further place reliance on ***Republic v Nairobi City County & another ex parte Wainaina Kigathi Mungai [2014] eKLR*** and ***Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Ltd [2004] 2 eKLR 530,*** wherein Kenyan courts affirmed the centrality of fairness and legitimate expectation in public administration. 10. It is the Petitioners’ case that the application of Section 4(1)(a) fails the constitutional test of proportionality under Article 24 of the Constitution. They contend that whereas limitation statutes serve legitimate purposes such as legal certainty and protection from stale claims, such objectives cannot justify extinguishing constitutional rights in circumstances where liability has been acknowledged and the creditor induced into delaying litigation. Reliance is placed on ***Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] KEHC 7494 (KLR),*** where the Court articulated the proportionality test requiring that any limitation of rights must pursue a legitimate objective, be rationally connected to that objective, impair rights as little as possible, and strike a proper balance between public interest and individual rights. 11. It is the Petitioners’ position that striking out their claim despite the Respondent’s acknowledgment of debt would amount to elevating procedural technicalities over substantive justice contrary to Article 159(2)(d) of the Constitution. They maintain that the Respondent would suffer no prejudice if the matter proceeds to hearing, whereas the Petitioners stand to suffer grave injustice through complete denial of an opportunity to ventilate their claim on the merits. 12. Accordingly, the Petitioners seek, the following reliefs from this court:- 13. ***A declaration that Section 4(1) of the Limitation of Actions Act is inconsistent with Articles 48 and 50(1) of the Constitution in so far as it bars access to court in meritorious claims.*** 14. ***A declaration that the Petitioners’ right to access to justice has been violated by the rigid application of the statutory limitation period.*** 15. ***An order directing the Magistrate’s Court at Milimani to hear and determine MCCC/E1768/2025 on its merits, notwithstanding the expiry of the 6-year period provided in Section 4(1) of the Limitation of Actions Act.*** 16. ***Costs of this petition.*** 17. ***Any other relief this Honourable Court deems fit to grant.*** **ANALYSIS AND DETERMINATION** 1. Having carefully considered the Petition dated 15th May 2025, the Notice of Motion application of even date, the affidavits sworn in support thereof, the annexures thereto, and the submissions filed by the Petitioners, this Court is of the considered view that the following issues arise for determination: 2. ***Whether the present proceedings disclose a proper constitutional petition.*** 3. ***Whether Section 4(1)(a) of the Limitation of Actions Act violates Articles 48 and 50(1) of the Constitution as alleged.*** 4. ***Whether the Petitioners have demonstrated violation, denial, or threatened infringement of constitutional rights warranting the intervention of this Court.*** 5. ***Whether the Petitioners are entitled to the reliefs sought.*** 6. At the heart of the present dispute lies a contractual claim arising from the alleged supply of construction materials to the Respondent in the year 2015 valued at Kshs. 9,144,000/=. The Petitioners aver that despite delivery and acknowledgment of the goods, payment was not forthcoming. They further contend that the Respondent continuously assured them that payment would be made and that they consequently refrained from instituting legal proceedings within the statutory period prescribed under Section 4(1)(a) of the Limitation of Actions Act. 7. The Petitioners now apprehend that the Respondent may invoke the doctrine of limitation before the subordinate court in **Milimani CMCC No. E1768 of 2025,** thereby rendering their claim statute-barred. It is this apprehension that has precipitated the present constitutional proceedings. 8. The Court is not persuaded that the Petitioners’ apprehension that the Respondent may invoke Section 4(1)(a) of the Limitation of Actions Act transforms what is, in substance, an ordinary contractual dispute into a constitutional controversy warranting the intervention of this Court under Articles 22 and 23 of the Constitution. 9. What is presented before this Court is fundamentally a claim arising from an alleged contractual relationship for the supply of goods, the enforcement of which properly lies within the jurisdiction of the subordinate court seized of **Milimani CMCC No. E1768 of 2025.** 10. The Supreme ***Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR)*** cautioned that constitutional jurisdiction ought not to be invoked where there exist alternative legal frameworks capable of resolving the dispute, particularly where the matter is essentially contractual in nature. 11. Similarly, in ***Methodist Church in Kenya v Mohamed Fugicha & 3 others [2019] eKLR,*** the Supreme Court warned against the improper constitutionalisation of ordinary disputes, holding that the mere citation of constitutional provisions does not, without more, elevate a grievance into a constitutional question. 12. The principle is further reinforced in Speaker of the ***National Assembly v Karume [1992] eKLR,*** where the Court of Appeal held that where a clear procedure for the redress of a grievance is prescribed by law, that procedure ought to be strictly followed. 13. In the present case, the Petitioners have not demonstrated the existence of any discrete constitutional question requiring interpretation or enforcement under Articles 22 and 23 beyond the anticipated application of a statutory defence in ongoing civil proceedings. 14. This Court is therefore unable to find that the dispute discloses a bona fide constitutional controversy as opposed to a private law claim prematurely elevated into constitutional litigation. 15. Further, the celebrated principle in ***Anarita Karimi Njeru v Republic [1979] eKLR***, which has repeatedly received approval by courts including the Supreme Court, requires that a constitutional petitioner must plead with precision the specific constitutional provisions violated and the manner of such violation. 16. The Petitioners herein have not demonstrated with the requisite precision how Section 4(1)(a) of the Limitation of Actions Act violates Articles 48 and 50(1) of the Constitution. What emerges from the pleadings is, in substance, dissatisfaction with the legal consequences attendant upon lapse of time in the enforcement of a contractual claim. 17. In Black’s Law Dictionary, 11th Edition, a “constitutional question” is defined as: “An issue whose resolution requires the interpretation or application of a constitution rather than that of a statute or other law.” 1. The dispute before this Court does not principally call for constitutional interpretation. Rather, it concerns enforcement of an alleged contractual debt and the possible applicability of limitation statutes thereto, issues that squarely fall within the province of ordinary civil litigation. 2. The Petitioners have argued that the Respondent’s promises to pay and repeated assurances justified the delay in instituting proceedings. However, the Court is not persuaded that such promises of settlement, without more, are capable of displacing statutory limitation or converting what is fundamentally an ordinary contractual dispute into a constitutional controversy. 3. Indeed, litigation must come to an end, and limitation statutes exist precisely to ensure certainty and finality in legal affairs. The Court in ***Divecon Limited v Samani [1995 - 1998] 1 EA 48*** emphatically held that no court has jurisdiction to extend time for filing suits founded on contract outside the express provisions of the Limitation of Actions Act. 4. Moreover, the Petitioners themselves acknowledge that they have already instituted **Milimani CMCC No. E1768 of 2025**, which suit remains pending before a court of competent jurisdiction. The issues touching on limitation, acknowledgment of debt, accrual of cause of action, estoppel, or any alleged continuing obligations are all matters that can properly be canvassed before the trial court. 5. The apprehension that the Respondent “may” raise a preliminary objection founded on limitation cannot constitute a legitimate basis for invoking constitutional jurisdiction. Courts do not adjudicate speculative injuries, anticipated defences, or hypothetical violations. A constitutional court is not an advisory forum for determining how another court may or may not decide issues properly before it. 6. The Supreme Court in ***Law Society of Kenya v Attorney General & 2 others [2019] eKLR*** reiterated that constitutional adjudication should be reserved for genuine and substantive constitutional controversies and not invoked as a substitute for ordinary procedures established under statute. 7. This Court further notes that despite service, the Respondent neither entered appearance nor filed any response to these proceedings. However, the absence of a response does not *ipso facto* entitle a petitioner to constitutional reliefs. 8. A petitioner bears the legal and evidential burden of proving, on a balance of probabilities, the alleged violation of constitutional rights and freedoms. Constitutional petitions are not determined on default of appearance, and the absence of a response does not relieve a petitioner of the obligation to meet the constitutional threshold of proof. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, the Court emphasized that constitutional litigation demands substantive proof and precision, and courts must guard against transforming constitutional jurisdiction into a general substitute for ordinary litigation. 9. Similarly, the Supreme Court in ***Raila Odinga & others v Independent Electoral and Boundaries Commission & others [2013] eKLR*** reaffirmed that he who alleges must prove, and the legal burden remains throughout upon the party asserting constitutional violation. 10. The Petitioners herein have failed to discharge that burden. 11. The Court further finds that adequate alternative mechanisms exist for resolution of the dispute, including the pending civil proceedings before the subordinate court, as well as negotiation, mediation, and other dispute resolution mechanisms contemplated under Article 159(2)(c) of the Constitution. 12. Constitutional jurisdiction is not to be invoked as a first port of call where effective statutory and procedural mechanisms remain available and have not been exhausted. 13. The principle that limitation statutes serve legitimate public purposes is well settled in law, including the objectives of certainty, finality, and the protection of parties from the burden of defending stale claims. These considerations have been recognised within constitutional proportionality analysis, including in ***Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] KEHC 7494 (KLR),*** where the Court acknowledged that limitations on rights may be justified where they serve legitimate and proportionate public objectives. The Petitioners have not demonstrated that Section 4(1)(a) is arbitrary, irrational, or disproportionate. On the contrary, the provision applies uniformly to all litigants and forms part of a coherent statutory framework regulating contractual disputes. 14. The Court therefore finds no constitutional infirmity in Section 4(1)(a) of the Limitation of Actions Act. 15. Ultimately, the Court is satisfied that the present proceedings constitute an attempt to constitutionalise an ordinary contractual dispute and to pre-empt issues that properly fall for determination before the subordinate court seized of **Milimani CMCC No. E1768 of 2025**. 16. In the premises, the Court finds that the Petitioners have failed to establish any violation, denial, or threatened infringement of constitutional rights warranting the intervention of this Court under Articles 22 and 23 of the Constitution. 17. Accordingly, this court issues the following final orders: 18. The Petition dated 15th May 2025 and the Notice of Motion application of even date are hereby dismissed. 19. Given that the Respondent did not participate in these proceedings despite service, the Court shall make no order as to costs. Orders accordingly. File closed accordingly. **DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.** **………………………………….** **BAHATI MWAMUYE MBS** **JUDGE** In the presence of:- Counsel for the Petitioners – Mr. Idambo Counsel for the Respondent – N/A Court Assistant – Mr. Martin and Mr. Austin