Tulsi Construction Ltd v Kawaken Holdings Ltd (Civil Appeal E631 of 2024) [2026] KEHC 9944 (KLR) (Civ) (9 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL DIVISION** **CIVIL APPEAL NO. E631 OF 2024** **TULSI CONSTRUCTION LIMITED………………………………………APPELLANT** **-VERSUS-** **KAWAKEN HOLDINGS LIMITED……………………………………….RESPONDENT** *(Being an appeal against the Judgment of Hon. A.N. Ogonda (PM) delivered on 26th April 2024 in Milimani MCCOMMSU No. E769 of 2020)* **JUDGMENT** **Background** 1. By an Agreement and Conditions of Contract for Building Works, the Respondent engaged the Appellant as the main contractor for the construction of apartments on L.R. No. 51/156 along Waiyaki Way, Nairobi, at a contract sum of Kshs. 257,974,185.00. 2. Upon the Appellant’s application for payment, the project quantity surveyor prepared Interim Valuation No. 14, on the strength of which Certificate No. 14 issued, certifying the sum of Kshs. 2,781,937.00 as due and payable to the Appellant. 3. The Appellant raised its invoice on 6th March 2014. That invoice was never settled. Silence prevailed until 17th July 2020, when the Appellant demanded payment by email, drawing from the Respondent a reply dated 8th August 2020 whose true construction lies at the heart of this appeal. 4. By a plaint dated 29th September 2020, the Appellant sued the Respondent in the trial court for Kshs. 2,781,937.00 with interest at commercial bank lending rates, together with Kshs. 964,530.28 described as unremitted withholding tax. 5. The Respondent’s statement of defence dated 16th December 2020 pleaded that the suit was time-barred and that the contract reserved disputes to arbitration, and its Notice of Preliminary Objection dated 1st February 2021 pressed the same two grounds. 6. By a ruling delivered on 29th March 2021, the trial court declined the objection, holding that *“I am unable to allow a preliminary objection on the ground that the suit is time barred as evidence needs to be taken on the e-mail of 8/08/2020 to confirm the admission. The Defendant will be at liberty to prove at the hearing of the suit that there was no admission and that this suit is indeed time barred.”* 7. The Respondent’s appeal against that ruling, High Court Civil Appeal No. E039 of 2021, was dismissed by this Court on 21st April 2022. The suit then proceeded to full hearing. 8. The Appellant’s director testified that Certificate No. 14 was never paid despite follow-ups, while the Respondent’s managing director conceded that the certificate had been forwarded to the bank, that the bank could no longer trace the records, and that the invoice was not paid. 9. In a judgment delivered on 26th April 2024, the learned magistrate held of the email of 8th August 2020 that *“There is no admission of the debt or promise to pay. There is just a request for patience”*, found that the suit ought to have been filed by 7th April 2020, and dismissed it with costs for being time-barred. 10. That dismissal provoked the present appeal, mounted on seven grounds in the memorandum of appeal dated 24th May 2024, which resolve, in substance, into three complaints: 11. **That the question of limitation was res judicata and its re-determination offended the doctrine of stare decisis;** 12. **that the respondent’s written acknowledgment of the debt renewed the cause of action under section 23(3) of the Limitation of Actions Act, Cap 22; and** 13. **that the trial court failed to weigh the evidence and wrongly dismissed a proven claim.** **The Appellant’s Submissions** 1. Learned counsel for the appellant, Kabugu & Co. Advocates submitted that the issue of limitation was heard and determined with finality by the ruling of 29th March 2021, which was itself upheld by this Court in Civil Appeal No. E039 of 2021, and that its re-opening at judgment offended the doctrine of res judicata as expounded in *Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR)*. 2. Counsel further invoked the doctrine of vertical stare decisis, placing reliance on *Munya v Independent Electoral and Boundaries Commission & 2 Others [2014] KESC 38 (KLR)* and *Justice Jeanne W. Gacheche & 5 Others v Judges and Magistrates Vetting Board & 2 Others [2015] eKLR*, to urge that the trial court was bound by the decision of this Court in E039 of 2021 and disregarded it at its peril. 3. On the substance, counsel submitted that the Respondent’s emails of 17th July 2020 and 8th August 2020, read together and contextually, constituted a written acknowledgment of the debt within the meaning of sections 23(3) and 24 of the Limitation of Actions Act, thereby resetting the limitation clock to 8th August 2020; reliance was placed on *Crown Health Care v Jamu Imaging Centre Limited [2021] eKLR* and *Choitram v Nazari [1984] KLR 327* on the character of admissions. 4. Counsel reminded the Court of its duty as a first appellate court under *Selle & Another v Associated Motor Boat Co. [1968] EA 123* to re-evaluate the evidence afresh, and submitted that on such re-evaluation the claim stood proved: the contract, the valuation, the certificate and the invoice were never controverted, and the Respondent offered no justification for non-payment. 5. The Court was urged to allow the appeal, set aside the judgment of 26th April 2024 and allow the plaint as prayed, with costs. **The Respondent’s Submissions** 1. Learned counsel for the Respondent, CIM Advocates, countered that neither the ruling of 29th March 2021 nor the judgment in E039 of 2021 conclusively determined the question of limitation; both courts expressly deferred it to the trial, and a deferred issue cannot be res judicata. 2. Counsel drew support from *Alba Petroleum Limited v Total Marketing Kenya Limited [2019] eKLR* and the recent pronouncement of the Court of Appeal in *Embassy of the Kingdom of Belgium in Nairobi v Mande [2025] KECA 214 (KLR)* that where jurisdictional facts are unclear, *“the only reasonable course is for the court to postpone its determination on the issue pending the establishment of all the necessary facts.”* 3. On limitation itself, counsel submitted that the cause of action accrued upon presentation of the invoice in 2014, that section 4(1) of the Limitation of Actions Act admits of no extension in contract, citing *Divecon v Samani (1995–1998) 1 EA 48* and *Gathoni v Kenya Co-operative Creameries Limited [1982] KLR 104*, and that the email of 8th August 2020 fell short of the unequivocal acknowledgment contemplated by sections 23(3) and 24, being a mere request for time to verify; reliance was placed on *Telkom Kenya Limited v Kenya Railways Corporation [2018] KEHC 8424 (KLR)* and *Express Kenya Limited v East African Breweries Limited [2019] eKLR*. 4. The suit having been filed months after 7th April 2020, counsel urged that it was irredeemably time-barred, that limitation goes to jurisdiction, and that the dismissal was not only correct but inevitable. The Court was urged to dismiss the appeal with costs. **Issues for Determination** 1. Having considered the record of appeal, the grounds of appeal and the rival submissions, two issues fall for determination: 2. ***Whether the learned magistrate was precluded by the doctrines of res judicata and stare decisis from determining the question of limitation at the trial; and*** 3. ***Whether the suit was barred by the Limitation of Actions Act or whether the respondent’s email of 8th August 2020 renewed the cause of action and, if the suit was competent, whether the appellant proved its claim.*** **Analysis and Determination** 1. This is a first appeal. The Court’s duty was stated in **Selle & Another v Associated Motor Boat Co. [1968] EA 123**, that *“this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect”*, and restated by the Court of Appeal in **Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR** as the duty *“to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”* ***(i) Whether the question of limitation was foreclosed by res judicata and stare decisis*** 1. The first four grounds of appeal stand or fall together. The doctrine of res judicata, given statutory form in **Section 7 of the Civil Procedure Act, Cap 21**, states as follows: *“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of the claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”* 1. The same was authoritatively distilled in ***Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR)***, where the Court of Appeal held that its elements are *“rendered not in disjunctive, but conjunctive terms”*, so that the party invoking the bar must establish, among other things, that *“the issue was heard and finally determined in the former suit.”* At paragraphs 74- 76 of the judgment, The Court of Appeal states that: *“74. Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;* *(a) The suit or issue was directly and substantially in issue in the former suit.* *(b) That former suit was between the same parties or parties under whom they or any of them claim.* *(c) Those parties were litigating under the same title.* *(d) The issue was heard and finally determined in the former suit.* *(e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.* *75. The learned Judges were fully aware and applied their minds to these elements when, applying this Court’s decision in Uhuru Highway DevelopmentLtd v Central Bank of Kenya [1999] eKLR they rendered the elements as;* *(a) the former judgment or order must befinal;* *(b) the judgment or order must be on merits;* *(c) it must have been rendered by a court having jurisdiction over the subject matter and the parties; and* *(d) there must be between the first and the second action identity of parties, of subject matter and cause of action.”* *76. The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”* 1. The question therefore is, was the question of limitation heard and finally determined by the ruling of 29th March 2021? The ruling must be read as a whole, and read whole it speaks with candour. The learned magistrate did not hold that the suit was within time; she held that she could not yet tell. Her words bear repeating: *“I am unable to allow a preliminary objection on the ground that the suit is time barred as evidence needs to be taken on the e-mail of 8/08/2020 to confirm the admission. The Defendant will be at liberty to prove at the hearing of the suit that there was no admission and that this suit is indeed time barred.”* 1. That was an entirely orthodox course. A preliminary objection, as classically defined by Law J.A. in *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*, *“consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”*, and cannot be sustained where any fact requires ascertainment. 2. Because the plea of limitation in this case turned on the disputed effect of a document, the email of 8th August 2020, it ceased to be a pure point of law and had to await evidence. The ruling therefore decided the propriety of the procedural vehicle, not the destination of the journey. 3. Nor did this Court, in Civil Appeal No. E039 of 2021, travel any further. The judgment of 21st April 2022 held that *“the learned magistrate did not err in declining to strike out the Respondent’s suit for being time barred by the Limitation of Actions Act”*, an affirmation of the deferral, not a determination of the deferred question. 4. Declining to strike out a suit as time-barred is not the same thing as declaring it timeously filed. The approach both courts took is the very one the Court of Appeal has since commended in **Embassy of the Kingdom of Belgium in Nairobi v Mande [2025] KECA 214 (KLR***)*: where jurisdiction depends on facts not yet established, *“the only reasonable course is for the court to postpone its determination on the issue pending the establishment of all the necessary facts.”* 5. It follows that the doctrines the Appellant summons in fact march against it. Far from being bound to abstain, the learned magistrate was bound to return to the question: her own ruling had reserved it, and this Court had blessed the reservation. A judge cannot be faulted for walking through a door which the appellate court expressly left open. 6. Grounds 1 to 4 of the memorandum of appeal accordingly fail. But that conclusion clears the ground rather than ends the contest, for while the learned magistrate had the mandate to determine limitation at the trial, the decisive question on this appeal is whether she determined it correctly. To that question the Court now turns. ***(ii) Whether the suit was time-barred, and whether the claim was proved*** 1. Section 4(1)(a) of the Limitation of Actions Act provides that an action founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. 2. Under clause 34.5 of the parties’ contract, the Appellant became entitled to payment within fourteen days of presenting an interim payment certificate. The invoice on Certificate No. 14 issued on 6th March 2014; the cause of action therefore accrued, at the latest, in early April 2014, and the six years ran out in April 2020. 3. The suit was filed on 29th September 2020. Prima facie, then, it came to court some five months too late, and the statute is unbending: in **Divecon v Samani (1995–1998) 1 EA 48** the Court of Appeal held that *“no one shall have the right or power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract”*, and no court may extend that time. 4. The policy is equally settled: as Potter J.A. put it in **Gathoni v Kenya Co-operative Creameries Limited [1982] KLR 104**, *“the law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them.”* Thus far, the Respondent’s course runs smooth. Everything, therefore, turns on the single statutory lifeline the Appellant seized: sections 23(3) and 24 of the Act. 5. Section 23(3) provides: *“Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to the movable property of a deceased person, and the person liable or accountable therefor 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.”* 1. Section 24(1) supplies the form: every such acknowledgment *“must be in writing and signed by the person making it.”* What, then, amounts to an acknowledgment? In **Telkom Kenya Limited v Kenya Railways Corporation [2018] KEHC 8424 (KLR***)*, Onguto J. held that *“to amount to an acknowledgment, a document ought to contain an unequivocal recognition and acceptance of the claim being made.”* The test is of the same family as that for admissions generally, of which Madan J.A. said in **Choitram v Nazari [1984] KLR 327** that they *“have to be plain and obvious, as plain as a pikestaff and clearly readable”.* 2. Two further principles, drawn from persuasive English authority on statutes in pari materia, complete the frame: an acknowledgment need not be accompanied by any promise or willingness to pay, for the law implies the promise from the admission **(Spencer v Hemmerde [1922] 2 AC 507**); and it need not quantify the debt, so long as the debt acknowledged is ascertainable by extrinsic evidence **(Dungate v Dungate [1965] 1 WLR 1477)**. The question is never whether the debtor was gracious, but whether he recognised the claim. 3. With those principles in hand, the Court sets out the Respondent’s email of 8th August 2020 in full, for it must be construed whole and not in fragments: *“We are writing to confirm that we received your email regarding the above subject. What we can only say is that you are big jokers and not serious. Where have you been for the last five (5) years since January, 2014 to claim the unpaid certificate. The certificate No. 14 was issued by the Architects for presentation to the Bank. Please have patience with us to trace from the Bank the position.”* 1. Four features of that email command attention. First, its scorn, *“big jokers and not serious”*, is aimed at the Appellant’s delay in claiming, not at the existence of the claim; a rebuke for tardiness in collecting a debt presupposes that there is a debt to collect. 2. Secondly, the writer’s own pen christens the subject-matter *“the unpaid certificate”*: the adjective is the Respondent’s, not the Appellant’s, and it is difficult to conceive of a plainer recognition that the certified sum remained outstanding. 3. Thirdly, the email identifies the very instrument on which the suit is founded, *“The certificate No. 14 was issued by the Architects for presentation to the Bank”*, acknowledging both its issuance and the machinery by which it was to be paid. 4. Fourthly, and decisively, the writer pleads: *“Please have patience with us to trace from the Bank the position.”* A debtor who disputes a debt shows his creditor the door; he does not beg his creditor’s patience while he searches the house for a receipt. The only escape hatch the email reserves is the possibility that the bank had already paid, a contingency, not a denial. 5. And that solitary contingency collapsed at the trial, through the Respondent’s own witness. Its managing director conceded that the certificate had been sent to the bank, that the bank could no longer trace the records, and that the invoice was not paid. Once the reserved possibility of payment evaporated, what remained of the email was recognition of the claim, whole and unqualified. Nor was any question ever raised as to the writing or the signature: the Respondent never disputed authorship of the email at any stage, the trial court treated it as the Respondent's document, and an acknowledgment transmitted electronically over the maker’s name satisfies section 24. 6. Measured against **Telkom Kenya Limited v Kenya Railways Corporation (supra)**, the recognition here is unequivocal; measured against **Choitram v Nazari (supra)**, it is as plain as a pikestaff, requiring no magnifying glass; and consistent with **Spencer v Hemmerde**, the writer’s evident irritation and want of enthusiasm to pay are beside the point. 7. The Respondent’s reliance on *Express Kenya Limited v East African Breweries Limited [2019] eKLR* does not assist it: every document falls to be construed on its own words, and the words of this document carry their own confession. 8. The learned magistrate reached the opposite conclusion by holding that *“there is no admission of the debt or promise to pay. There is just a request for patience.”* With respect, that holding discloses two misdirections. It read the plea for patience in isolation, shorn of the admissions in which it was clothed, the “unpaid certificate,” the acknowledged issuance of Certificate No. 14, the reproach for five years’ delay in claiming, whereas a document must be construed as a whole. And it demanded of section 23(3) something the section does not ask: a *promise to pay*. 9. The statute is satisfied by acknowledgment alone; the law supplies the consequence which the debtor withholds. In **Mbogo and Another v Shah [1968] EA 93**, the predecessor of the Court of Appeal confined appellate interference to cases where the court below *“misdirected itself in some matter and as a result arrived at a wrong decision.”* That threshold is met. 10. The effect of the acknowledgment of 8th August 2020 is dictated by the statute itself: the right of action accrued *“on and not before the date of the acknowledgement”*, so that a fresh six-year period opened on 8th August 2020. The plaint of 29th September 2020 followed within seven weeks. The suit was not time-barred, and the learned magistrate erred in dismissing it. Limitation is a shield against stale claims; it was never meant to be a sword for confessed ones. 11. The suit being competent, the Court must complete the task the trial court left undone and re-evaluate the claim on its merits, as *Selle* and *Abok James Odera* oblige it to do. 12. On the record, the contractual relationship, the works, Interim Valuation No. 14, Certificate No. 14 and the invoice for Kshs. 2,781,937.00 were never controverted: the statement of defence offered no answer to the claim beyond limitation and the arbitration point, both of which have fallen away, and the Respondent's managing director conceded on oath that the invoice was never paid. 13. Under clause 34.5 of the contract, payment fell due within fourteen days of presentation of the certificate. A certified, invoiced, admitted and unpaid sum is the very paradigm of a proved liquidated claim, and the appellant discharged its burden under sections 107 and 109 of the Evidence Act on a balance of probabilities. Judgment must therefore enter for the principal sum of Kshs. 2,781,937.00. 14. The claim for Kshs. 964,530.28, described as unremitted withholding tax, stands on different footing. It is a special claim of a statutory character, whose primary destination is the Commissioner of taxes rather than the payee, and it fell to be specifically pleaded and strictly proved in the manner the Court of Appeal insisted upon in **Hahn v Singh [1985] KLR 716**. 15. No withholding tax certificates, deduction schedules or revenue records were placed before the trial court to demonstrate that the sum was deducted, withheld or lost to the Appellant. That head of claim was not proved and is declined. 16. As to interest, the plaint sought commercial bank lending rates from the date of default, but no contractual rate for late payment and no evidence of the prevailing commercial rate was led. The Court will therefore exercise its discretion under section 26(1) of the Civil Procedure Act and award interest at court rates from the date of filing suit, when the renewed cause of action was pursued. **Disposition** 1. In the end, the appeal succeeds. The learned magistrate was entitled to revisit the question of limitation, but in answering it she misconstrued the Respondent’s acknowledgment of 8th August 2020 and thereby shut out a claim the law had revived. Accordingly, the Court makes the following orders: (a)The appeal is allowed. (b)The judgment and decree of the trial court delivered on 26th April 2024 in Milimani MCCOMMSU No. E769 of 2020 are set aside and substituted with judgment for the appellant against the respondent in the sum of Kshs. 2,781,937.00. (c)The sum in (b) shall attract interest at court rates from 29th September 2020 until payment in full. (d)The claim for Kshs. 964,530.28 in respect of unremitted withholding tax is dismissed. (e)The Appellant shall have the costs of this appeal and of the suit in the trial court. It is so ordered. **Dated and delivered at Nairobi this 9th Day of July, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **MURUNGA, J** *Delivered on virtual platform in the presence of:* *In the presence of:* *Ms Buluma instructed by Kabugu & Co. for the Appellant* *CIM Advocates instructed for the Respondent (N/A)* *Kevin Babu - Court Assistant*