https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8320

Uzuri Foods Ltd v Kanyi (Civil Appeal E019 of 2025) [2026] KEHC 8320 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8320 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E019 of 2025 KL Kandet, J June 12, 2026 Between Uzuri Foods Ltd Appellant and Alice Wambui Kanyi Respondent (Being an appeal from the Ruling of Hon. J.O Magori SPM, delivered on 30th January, 2025 in Limuru, Civil Case No. 251 of 2018) Judgment 1.This appeal emanates from the Ruling delivered on 30th January, 2025 in Limuru Civil Case No. 251 of 2018. The suit originated from the Plaint dated 5th September, 2018 and filed by Alice Wambui Kanyi being the Plaintiff in the lower court (hereafter the Respondent) and against Uzuri Foods Ltd the Defendant, in the lower court (hereafter the Appellant). 2.The Respondent instituted a suit against the Appellant seeking special damages in the sum of Kshs.466,043/=, costs of the suit, and interest arising from a road traffic accident that occurred on or about 5th September, 2015 along the Mai- Mahiu- Nairobi Road at Mutarakwa. The Respondent pleaded that, at all material times, the Appellant was the registered owner, driver and/or agent of motor vehicle registration number KBW 743Q (hereinafter “the subject motor vehicle”). It was further alleged that on the material date, the subject motor vehicle was negligently, recklessly and carelessly driven and/or controlled by the Appellant, its servant, agent and/or driver, causing it to roll back and ram into the Respondent’s Motor vehicle registration no. KAU 646V occasioning damage and loss to the Respondent. 3.The Respondent subsequently filed a statement of Defence dated 23rd April, 2019, denying the averments made in the Plaint in respect to negligence and liability on their part. 4.Subsequently, the Appellant in the said suit filed a Notice of Preliminary Objection dated 17th May,2024 against the Respondent’s suit on the grounds that:i.The cause of action took place on the 5th September, 2015 and any action should have been instituted on or before 4th September, 2018;ii.The Plaint herein dated 5th September, 2018 was filed after the lapse of three years from the date of the tortious act is said to have occurred; andiii.No leave to file suit out of time was sought or obtained. 5.The Preliminary Objection was canvassed by way of written submissions by the parties. Upon close of submissions, the trial court delivered a Ruling dated 30th January, 2025 holding that the Preliminary Objection dated 17th May, 2024 lacked merit, was an abuse of the court process. Consequently, the Court dismissed it with costs to the Plaintiff. 6.Aggrieved with the outcome, the Appellant preferred this appeal which is premised on the following grounds:i.That the learned magistrate erred in law and in fact by failing to make a finding that the Respondent's suit was filed out of time.ii.That the learned magistrate erred in fact and in law by failing to find that the Respondent's suit was time-barred for the reason that the cause of action arose on 5th September 2015 and therefore the last day for filing the suit was 4th September 2018.iii.That the learned magistrate erred in fact by failing to find that the deadline for filing the claim should have been 23:59 hours on 4th September 2018.iv.That the learned magistrate erred in law by wrongly interpreting the provisions of Order 50 Rule 8 of the Civil Procedure Rules, 2010 and enlarging time for the Respondent to bring the suit.v.That the learned magistrate erred in law by failing to appreciate the Appellant's submissions that a rule made under subsidiary legislation cannot supersede the express provisions of an Act of Parliament.vi.That the learned magistrate erred in law by failing to appreciate that Section (2) of the Limitation of Actions Act expressly provides for tortious claims to be brought within three years from the date when the cause of action accrued.vii.That, in all the circumstances of the case, the findings of the learned Magistrate are unsupportable in law or on the basis of the evidence adduced. 7.The Appellant therefore seeks that this Court do allow the Appeal, set aside the ruling of the learned Magistrate dismissing the Appellant's Preliminary Objection in Limuru SPMCC No. 251 of 2018, and to award costs of the appeal and of the proceedings in the lower court to the Appellant. 8.This Appeal was canvassed by way of written submissions. The Appellant’s counsel condensed grounds of appeal into one issue: whether the trial magistrate erred in finding that the Respondent's suit was filed within time. 9.On this issue, Counsel for the Appellant submitted that the cause of action arose on 5th September 2015 following a road traffic accident involving the parties' motor vehicles. The Respondent instituted the suit on 5th September 2018 seeking damages arising from the accident. 10.Counsel submitted that under Section 4(2) of the Limitation of Actions Act, an action founded on tort must be brought within three years from the date the cause of action accrued. It was argued that the three-year limitation period expired at 11:59 p.m. on 4th September 2018 and, consequently, the suit filed on 5th September 2018 was statute-barred. 11.The Appellant faulted the trial court for relying on Order 50 Rule 8 of the Civil Procedure Rules in computing time and finding that the suit had been filed within the prescribed period. Counsel contended that the learned magistrate misapplied the provision and thereby wrongly extended the limitation period contrary to the express provisions of the Limitation of Actions Act. 12.It was further submitted that by filing the suit on 5th September 2018, the Respondent commenced the action in the fourth year after accrual of the cause of action and was therefore outside the statutory limitation period. Counsel maintained that the trial court erred in its computation of time and improperly aided an indolent litigant. 13.In support of the foregoing arguments, counsel relied on the decisions in Rawal v Rawal, Iga v Makerere University and Gathoni v Kenya Co-operative Creameries Ltd for the proposition that limitation statutes are intended to prevent stale claims, protect defendants from delayed litigation, and that a court lacks jurisdiction to grant relief in respect of a claim that is time-barred. 14.Counsel therefore urged the Court to allow the appeal, set aside the ruling dismissing the preliminary objection, uphold the preliminary objection dated 17th May 2024, and award the Appellant the costs of both the appeal before the lower court. 15.Conversely, the Respondent filed written submissions dated 19th March, 2026. The Respondent’s Counsel equally condensed his submissions into the salient issue of whether the suit was statute-barred. 16.Counsel for the Respondent submitted that the cause of action arose on 5th September 2015 and, pursuant to Section 4(2) of the Limitation of Actions Act, the Respondent had three years within which to institute the claim. It was argued that the limitation period expired on 5th September 2018 and, since the suit was filed on that date, it was lodged within time. 17.Counsel contended that the Appellant's argument that time expired on 4th September 2018 was founded on an erroneous computation of time which would unlawfully reduce the statutory limitation period granted by Parliament. Reliance was placed on Divecon Ltd v Samani, Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR and Attorney General v Andrew Maina Githinji & Another [2016] eKLR for the proposition that timelines must be interpreted correctly and in a manner that facilitates access to justice. 18.Regarding the preliminary objection, Counsel submitted that a valid preliminary objection must raise a pure point of law capable of disposing of the matter without the need for factual inquiry. Reliance was placed on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Oraro v Mbaja [2005] 1 KLR 141. It was argued that the objection raised by the Appellant involved interpretation of the computation of time and therefore could not conclusively dispose of the suit as a pure point of law. 19.On the allegation that the trial court misinterpreted Order 50 Rule 8 of the Civil Procedure Rules, Counsel submitted that the argument was misconceived because the learned magistrate did not enlarge time but merely found that the suit had been filed within the statutory limitation period prescribed by the Limitation of Actions Act. 20.Counsel further invoked Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, arguing that courts should determine disputes on their merits and avoid undue reliance on procedural technicalities. Reliance was placed on City Chemist & Another v Oriental Commercial Bank [2008] eKLR and Abdirahman Abdi v Safi Petroleum Products Ltd & 6 Others [2011] eKLR. 21.On the role of an appellate court, Counsel submitted that an appellate court should not interfere with the findings of a trial court unless it is demonstrated that the court misdirected itself in law or fact. Reliance was placed on Peters v Sunday Post Ltd [1958] EA 424. It was argued that the Appellant had failed to demonstrate any such error on the part of the trial magistrate. 22.Counsel therefore urged the Court to find that the Respondent's suit was filed within time, that the learned magistrate correctly dismissed the preliminary objection, and that the appeal was devoid of merit. The Court was accordingly urged to dismiss the appeal with costs and uphold the ruling of the trial court. Analysis & Determination 23.This court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective Counsel for parties. 24.This being a first Appeal, the court’s duty was set out in the the Court of Appeal case in Selle v Associated Motor Boat Co. [1968] EA 123 , as follows: -“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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 25.Based on the above guidance and having perused the record, parties’ submissions and the decisions referred thereto, the issue that arises for this Court’s determination is whether the trial court erred to hold that the suit was not statute barred. 26.The crux of this Appeal surrounds the issue of limitation of time in filing pleadings on an action founded on tort. Section 4(2) of the Limitations of Actions Act Cap 22 provides:“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued”. 27.In the instant case, there is no dispute that the cause of action accrued on 5th September 2015 and that the suit was filed on 5th September 2018. The bone of contention concerns the proper computation of the three-year period and whether the action was filed within the prescribed timelines or outside the period. 28.The trial court in its impugned Ruling dated 30th January, 2025, dismissed the Appellant’s Preliminary Objection holding that the Plaint dated 5th September, 2018 was filed within time as the cause of action arose on 5th September, 2015 and therefore the last day of filing was on 5th September, 2018. 29.The Appellant faults the trial court’s finding on the computation of time contending that the limitation period expired at 11:59 p.m. on 4th September 2018 and not on 5th September, 2018 as held. 30.The Respondent on the other hand affirms, the trial court’s finding on the issue, maintaining that time for filing was to expire on 5th September 2018 and not on 4th September, 2018 as argued by the Appellant. 31.In determining this question on the reckoning of time in filing Pleadings, Section 57 of the Interpretation and General Provisions Act, Cap. 2, provides that::“Computation of timeIn computing time for the purposes of a written law, unless the contrary intention appears—(a)a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;(b),excluded days shall not be reckoned in the computation of the time.”(emphasis mine)Similarly, Order 50 Rule 8 of the Civil Procedure Rules, 2010 also provides that:“Where by these rules or by any judgement or order given or made by the court, time for doing any act or taking any proceedings is limited by days, the same shall be reckoned exclusive of the first day and inclusive of the last day.” 32.Although Section 57(a) of the Interpretation and General Provisions Act and Order 50 Rule 8 of the Civil Procedure Rules refer to computation of time in days, they embody the general principle that the day on which the cause of action accrues is excluded when computing statutory timelines unless a contrary intention appears. 33.In Civil Appeal NO. 6 of 2021,Ruth Syokau Kilunda & Anr v Ephantus Mwangi & Anr, the High Court at Malindi held:‘As to the expiration of the time for bringing action, the rule Is that the last day is the anniversary of the day on which the cause of action arose…. ‘ 34.Applying the above provisions to the case herein, it is clear that the cause of action having arisen on 5th September 2015, time began to run on 6th September 2015. The statutory period of three years prescribed under Section 4(2) of the Limitation of Actions Act therefore expired on 5th September 2018, being the last day when the pleadings would have been filed in the third year. Consequently, the suit filed on 5th September 2018 was instituted within time. I do so hold. 35.In Hazel Wanjiku Wamutitu & Another v Joreth Limited 2007 KEHC764(KLR)“Under Order XLIX r 7 Civil procedure RulesIn any case in which any particular number of days not expressed to be clear days is prescribed under these rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day.14.The first day of the order is not counted but the last day is counted in filing a document or affidavit as was in this case.15.In the case law of Mareen V Danson Bertly & Co. Ltd (1961) QBD 136, It clearly shows the computation of time to include the last day” 36.Finally, this court has also made reference to the provisions of Article 259(5)(a) of the Constitution of Kenya to provide general guidance on the issue of computation of time. It states:…………(5) In calculating time between two events for any purpose under this Constitution, if the time is expressed— (a) as days, the day on which the first event occurs shall be excluded, and the day by which the last event may occur shall be included 37.Accordingly, I find no error in the learned trial magistrate's holding that the Respondent's suit was filed within the statutory limitation period. The Preliminary Objection dated 17th May 2024 was therefore devoid of merit and was properly dismissed. Final Orders 38.In the upshot the appeal lacks merit and is hereby dismissed. Accordingly:i)The ruling delivered on 30th January 2025 in Limuru SPMCC No. 251 of 2018 is hereby upheld.ii)The Respondent shall have the costs of this appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE 2026 THROUGH THE MICROSOFT PLATFORM*KENNEDY KANDETJUDGEIn The Presence Of :Macharia For The AppellantChengecha For The RespondentCourt Assistant: Jackline Kurui