https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11142

Simtom Enterprises Limited v Board of Management Munathi Secondary School (Small Claims Appeal E001 of 2026) [2026] KEHC 11142 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 11142 (KLR) Republic of Kenya In the High Court at Makueni Small Claims Appeal E001 of 2026 JN Onyiego, J July 17, 2026 Between Simtom Enterprises Limited Appellant and Board of Management Munathi Secondary School Respondent (Appeal from the Judgment of Hon. L. Wanja Gitari (RM-Adjudicator) in Makindu Small Claims Court, SCCCOM No. E114 of 2025, delivered on 10th December 2025) Judgment 1.In the Claim dated 15/09/2025, it was averred that on diverse dates in the years 2017 and 2018, the Respondent approached the Appellant in need of supply of certain stationery material for the school which the Appellant agreed to supply on an understanding that payment would be made after delivery. That, the Respondent paid some amount but refused/neglected to pay an outstanding sum of Kshs. 84,597/= hence the claim. 2.The Respondent denied the claim in toto and raised a Preliminary Objection (P.O) on the ground that the claim was time barred as the six-years limitation period for actions in contract had lapsed as provided for under Section 4(1) of the Limitation of Actions Act, Cap 22 Laws of Kenya. 3.The Adjudicator upheld the P.O and dismissed the claim with costs of Kshs. 5,000/= to the Respondent. 4.Aggrieved by the judgment, the Appellant filed this appeal and raised the following grounds;a.That the Adjudicator erred in law by finding that the Appellant’s suit was time barred.b.That the Adjudicator erred in law by failing to evaluate the evidence tendered in this matter judiciously before arriving at her findings. 5.The appeal was canvassed through written submissions. 6.It was submitted that the Adjudicator erred by holding that the cause of action arose on 12/01/2018. That, the Appellant supplied the Respondent with stationery from the year 2017 and as late as 09/07/2024, the Appellant was still supplying as evidenced by the delivery note. That, the Appellant also adduced evidence of a WhatsApp chat of 28/03/2024 between its Director and the Respondent’s Principal which means that the parties were still in business. 7.That, having asked to be accommodated due to a cash crunch, the Respondent cannot turn around and claim that the suit is time barred. Reliance was placed on the Court of Appeal decision in Diana Katumbi Kiio -vs- Reuben Musyoki Muli (2018) KECA 860 (KLR) for the submission that a cause of action in contract arises from breach of a contract and not at the time it is executed. That, the Adjudicator correctly quoted the said decision but proceeded to misapply it. 8.It was submitted that during the existence of the parties’ relationship from 2017 to 2024, the Respondent was paying for supplies delivered but did not pay all the sums owed hence it cannot be said that the cause of action arose in 2018 as there was no breach of contract then. 9.It was submitted that according to the WhatsApp chat, the Principal did not deny the debt but only stated that she had transferred. Reliance was placed on the Court of Appeal decision in Mwobi -vs- Njoroge (Civil Appeal 314 of 2019) [2013] KECA 501 (KLR) for the submission that, the doctrine of estoppel precludes a person from asserting something contrary to what is implied by a previous action or statement of that person. 10.Consequently, it was contended that the cause of action arose on 09/07/2024 when the Appellant submitted its statement of claim to the Respondent and requested for payment. It was contended that the Respondent should not seek to evade payment by a mere change of Principals. 11.It was submitted that according to the Appellant’s pleadings, the alleged goods were supplied between the year 2017 and 2018 hence the 6-year statutory limit started running in 2018. That, the statement of claim ought to have been filed in the year 2024 and not 2025 hence statute barred. 12.Reliance was placed on the case of Rift Valley Railways (Kenya) Ltd -vs- Hawkins Wagunza Musonye (2016) KECA 213 (KLR) for the submission that; the communication between the Appellant and Respondent in the year 2024 on settlement of the debt did not stop the limitation period from running as the law does not contain a provision that automatically pauses the clock just because parties are negotiating. 13.Further reliance was placed on the case of Divecon -vs- Samani (1995-1998) 2 EA 48 for the submission that; no court may or shall have the right or power to entertain an action that is brought in contract six years after the cause of action arose or any application to extend such time for the bringing of the action. 14.It was submitted that the claim was filed seven (7) years after the alleged supply of goods hence the trial court was justified in upholding the P.O. 15.It is now settled that the duty of a First Appellate Court is to analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. [Selle -vs-Associated Motor Boat Company (1969) E.A 123]. 16.Having looked at the Record of Appeal and the rival submissions, the only issue for determination is whether the Appellant’s claim is statute barred. 17.According to the Statement of Claim, the Appellant’s cause of action is founded on a contract for the supply of stationery materials to the Respondent which was allegedly breached when the Respondent failed to pay an outstanding sum of Kshs. 84,597/=. 18.Section 4(1) of the Limitation of Actions Act, Cap 22 Laws of Kenya provides;“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; (emphasis added)(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.” 19.The main contention in this appeal is the time when the cause of action arose. The Appellant argues that it arose on 09/07/2024 when the Statement of Caim was submitted to the Respondent while the Respondent argues that it arose in 2018. 20.Paragraph 4 of the Statement of Claim avers that the stationery materials were supplied to the Respondent on diverse dates between the years 2017 and 2018. The statement of accounts produced by the Appellant shows that the last supply was made on 12/01/2018 thus culminating into a total debt of Kshs. 84,597/=. 21.It is not in dispute that in claims based on contract, the cause of action arises when the breach occurs and not at the time of execution as per the Court of Appeal decision in Diana Katumbi Kiio -vs- Reuben Musyoki Muli (supra). 22.In the WhatsApp chat between the Appellant and Respondent, the Appellant’s message was;“Good Morning, Madam Principal, this is Simtom Enterprises Ltd. Have been waiting for your response concerning that bill of Simtom Enterprises which I know you are aware of, but have not seen any response for all that period. Total bill is Kshs. 84,597.” 23.The Response to the message was; “Good afternoon I transferred.” It is therefore evident that this communication does not constitute an acknowledgement of debt which would revive the cause of action in terms of Section 23(3) of the Limitation of Actions Act which provides;“Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to movable property of a deceased person, and the person liable or accountable therefore acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment:Provided that a payment of a part of the rent or interest due at any time does not extend the period for claiming the remainder then due, but a payment of interest is treated as a payment in respect of the principal debt.” 24.Further, the date of 09/07/2024 is when the Statement of Accounts was delivered to the Respondent, which statement shows how the debt accrued from 17/01/2017 to 12/01/2018. I am therefore inclined to agree with the learned Adjudicator that the said delivery was for purposes of demanding for the debt which had accrued much earlier. 25.It was averred in the Statement of Claim that the understanding between the parties was that payment would be made after delivery. Consequently, I am inclined to agree with the learned Adjudicator that the cause of action accrued on 12/01/2018 when the last payment was due and as such, the last date of filing the claim was 12/01/2024. 26.The irresistible conclusion therefore commendable to me is that, the claim is statute barred and was rightly dismissed. Accordingly, I do not find merit in the appeal hence dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JULY 2026……...............………..J. N. ONYIEGOJUDGE