https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/264

Qona DT Sacco Society Ltd v Mokua (Tribunal Case E890 of 2025) [2026] KECOPT 264 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KECOPT 264 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E890 of 2025 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members May 14, 2026 Between QONA DT Sacco Society Ltd Claimant and James Gichana Mokua Respondent Ruling 1.This ruling dispenses with the Notice of Preliminary Objection dated 24th November 2025 2025. In the Notice of Preliminary Objection, the Respondents seek striking out of the Claimant’s Statement of Claim dated 24th September 2025 on the following grounds;a.That the Claim seeking debt recovery is time barred under the express provisions of section 4(1) of the Limitation of Actions Act Cap 22 Laws of Kenya.b.That accordingly the Statement of Claim dated 24th September 2025 is incompetent, fatally defective and an abuse of the court process and the same ought to be struck out in limene with costs to the Respondent. 2.The Claimant did not file any grounds of opposition. 3.The Application was canvassed by way of written submissions, and both parties filed their submissions. 4.In the Respondent’s submissions dated 4th March 2026, the Respondents sough to answer the question on whether the Claimant’s suit is statute-barred under the limitation of Actions Act. They submit that the cause of action arose in 2015, while the Claimant filed the present suit in September 2025, and that this is approximately 10 years after the cause of action and 4 years beyond the statutory limit. They relied on the case of Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) to explain what a preliminary objection is, and the case of Owners of Motor Vessel Lillian ‘S’ v Caltex Oil (Kenya) Ltd (1989) on jurisdiction. They pray that this Tribunal finds merit in the preliminary objection and strikes out the Claimant’s suit for being statute-barred. 5.The Claimants, on the other hand, filed their submissions dated 5th March 2026. In their submissions, they state that the Preliminary Objection in question does not raise pure points of law because it is not based on uncontested facts as the Tribunal will need to call for evidence before determining the contested facts. On the question of whether the suit is time barred they submitted that the loan was advanced to the Respondent in 2016, and he repaid till 2019 when he defaulted, and that is when the loan was rolled over to the guarantors, and that the last guarantor repayment was done in 2022, and that the date of the last loan repayment date is the effective date when the cause of action arose. They pray that this Tribunal dismisses the Respondent’s Preliminary Objection with costs. Analysis 6.This Tribunal has considered the Preliminary Objection, and the Submission of the parties. The question before this Tribunal is whether the Preliminary objection is merited and that the Claim ought to be dismissed. 7.The purpose and character of a preliminary objection was well discussed by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696. The court laid down the principles as to what constitutes a preliminary objection. A preliminary objection to be valid must be on a point of law and must be founded on facts that are not in dispute. If evidence would require to be adduced to establish the facts, then a preliminary objection would not be sustainable. 8.It is clear in this matter that the question to be answered is that of limitation of time, which is clearly a point of law. The Respondent’s P.O is brought under sections 4(1)(a) of the Limitations of Actions Act. 9.The second question is whether based on the Claim, this court can determine the question of limitation without interrogation of facts. It is not disputed that the Respondent was advanced loan by the Claimant over 6 years. However, what is not clear, is when the cause of action is deemed to have arisen. The cause of action would arises every time the debt, which is the subject matter of this case, is left undisturbed when it is due. Every repayment resets the cause of action. 10.From the statements filed by the Claimants, there has been an activity as far as 2022 on the Respondent’s loan account. This Tribunal is not able to determine the nature of activity without calling for more evidence. This therefore means that the application must fail the test for preliminary objection. 11.This Tribunal cannot clearly determine the question of when the cause of action arose, and whether the claim is time barred indeed, without calling for more evidence. 12.Flowing from above, the Preliminary Objection dated 24th November 2025 lacks merit and the same is hereby dismissed with costs to the Claimant. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY, 2026.HON. J. MWATSAMA - AG. CHAIRPERSON SIGNED 14/5/2026HON. BEATRICE SAWE - MEMBER SIGNED 14/5/2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 14/5/2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 14/5/2026HON. P. AOL - MEMBER SIGNED 14/5/2026Court Assistant - MutaiPre-trial directions on 10/9/2026Karue advocate holding brief for Chimei advocate for the ClaimantOmwanza advocate for the Respondent