https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12090

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT LODWAR** **CIVIL CASE NO. E005 OF 2025** **PETRONILA ESILO WAWERU…………………………………………………….1ST PLAINTIFF** **SELEVEREUS MABONGA………………………………………………………..2ND PLAINTIFF** **VERSUS** **THE HONOURABLE ATTORNEY GENERAL…………………………………..1ST DEFENDANT** **KENYA NATIONAL HIGHWAYS AUTHORITY………………………………2ND DEFENDANT** **NATIONAL POLICE SERVICE………………………………………………...3RD DEFENDANT** **RULING** **Background of the Case** 1. Before the court for determination is a Notice of Preliminary Objection dated the 3/02/2026 by the 1st and 3rd Defendants seeking to strike out the instant Plaintiffs’ suit on the grounds that it is time-barred under Section 3(1) of the Public Authorities Limitation Act, Chapter 39 of the Laws of Kenya. 2. The genesis of the plaintiff’s suit is traceable to the 5th day of November 2022 when the 1st Plaintiff’s motor vehicle bearing registration number KCC 928T was intercepted by the mobile patrol unit of the North Rift regional team of the Kenya National Highways Authority. At the time, the motor vehicle was being operated by her employee, the 2nd Plaintiff. 3. At the time of the interception, the vehicle was traveling under a commercial contract dated the 16th day of October 2022, executed between the 1st Plaintiff and Nasipan Construction and Supplies Limited. The contract was valued at three million four hundred thousand shillings for the supply of quarry blocks, sand, ballast, hardcore and cement to several public educational institutions within the Kalokol Ward, specifically Kalimapus, Lochuga, Namukuse and Longech primary schools. 4. The officers on duty proceeded to weigh the sand-laden vehicle on a mobile axle scale and declared that it carried a gross weight of 38,000 kilograms against a legally permissible weight of 26,000 kilograms. Allowing for a statutory tolerance of 2,000 kilograms, the authorities calculated a massive overload of 10,000 kilograms. The vehicle was summarily issued with a prohibition order and escorted to the Kalokol Police Station, where it was detained under armed guard. Simultaneously, the 2nd Plaintiff was arrested and placed in custody. 5. On the 9th day of November 2022, both Plaintiffs were arraigned before the Lodwar Magistrates’ Court in Traffic Case Number E097 of 2022, charged with the offence of operating an overloaded vehicle on a public road contrary to Section 56(1) as read with Section 58(1) of the Traffic Act. During the criminal trial, the Plaintiffs asserted their innocence, contending that the mobile scale used by the road authority was unverified and faulty. 6. On the 23rd day of March 2023, the trial magistrate ordered a physical reweighing of the vehicle in the presence of both parties and a representative from the Ministry of Trade’s Weights and Measures department. However, this order was frustrated when the officers of the Kenya National Highways Authority failed to provide the ignition keys, rendering the reweighing impossible. This ultimately led to the dismissal of the charges against the two by a judgment of acquittal delivered on the 28th day of February 2024. 7. During the period the trial went on, the vehicle remained parked at the police station with its heavy load intact for a continuous period of 143 days, until a court order secured its release on the 24/03/2023. The release came long after the contract between the 1st Plaintiff and Nasipan Construction and Supplies Limited was cancelled. 8. Vindicated but broken in estate, the Plaintiffs sought civil redress currently before the court. It asserted and pleaded that the plaintiff have incurred repair costs of one million forty-three thousand shillings, consisting of seven hundred twenty-one thousand shillings for mechanical repairs, seventy-four thousand shillings for replacement batteries, and two hundred forty-eight thousand shillings to purchase eight new tyres at thirty-one thousand shillings each upon the vehicle being released. The suit further seeks special damages in the sum of five million shillings alongside general damages for unlawful arrest, illegal vehicle detention and malicious prosecution. 9. By the pleadings file by the 1st and 3rd Defendants, it is argued and pleaded that because the Plaintiffs’ cause of action for malicious prosecution accrued upon their acquittal on the 28/02/2024, the twelve-month statutory window within which to sue public entities closed on the 28/02/2025. Because the Plaint was filed on the 22/09/2025, it is contended that the suit is incompetent, dead on arrival, and an abuse of the court process. 10. The 2nd Defendant did not enter appearance in time hence an interlocutory judgment was sought and obtained against it. The second defendant thus filed a Notice of Motion, under a Certificate of Urgency, on the 14/05/2026, seeking to set aside an interlocutory judgment. The Motion was supported by an affidavit sworn by its Deputy Director in charge of Axle Load Control. In the application, the 2nd defendant argued that it was never properly served with the summons and plaint in accordance with Section 65 of the Kenya Roads Act, and that its draft defence raised significant triable issues regarding the vehicle's excessive overloading. That application appears to have been made without appreciation of the court proceedings of 19.02.2026 by which the interlocutory judgment was set aside. It stands moot and overtaken by events. **Summary of the Defendants’ Submissions** 1. The written submissions of the 1st and 3rd Defendants filed on the 27/03/2026, posits that the Preliminary Objection is a proper pure point of law because it relies entirely on the dates pleaded in the Plaint, deponed in the Verifying Affidavit and not denied by the defendants, hence matters of uncontested and incontestable judicial record. It is argued that even when the Court assumes every factual claim made by the Plaintiffs to be true, the suit remains legally unsustainable because it was filed outside of the statutory limited period. 2. The Defendants submit that they are public authorities for whom Section 3(1) of the Public Authorities Limitation Act, Chapter 39, imposes a mandatory, non-discretionary twelve-month limitation period for any civil action in tort brought against the Government. It is further argued that a cause of action for malicious prosecution accrues on the date of acquittal, which represents the legal end of the criminal proceedings. 3. The two defendants base their calculation of the time to commence on the 28/02/2024 when the Plaintiffs were acquitted. Therefore, when the Plaint was filed on the 22/09/2025, the action was commenced more than seven months too late. Citing **Peter Maganju Kwaria vs Attorney General & 2 others [2016] eKLR**, it is emphasized that the provisions of Chapter 39 are strict and do not permit the Court to extend time. The defendants rely on the decision in **Silvanus Ombati Bongoye vs National Police Service Commission & 3 others [2017] eKLR**, and argue that a statute-barred suit deprives the court of jurisdiction and must be struck out. **Summary of Plaintiffs' Submissions** 1. In their written submissions dated the 13/06/2026, the Plaintiffs ask the Court to dismiss the Preliminary Objection with costs, describing it as premature and procedurally incompetent. They argue that the objection fails to meet the strict legal standard of a pure point of law as established in the classic case of **Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors*[1969] EA.*** It is contended that under the *Mukisa Biscuit* principles, a preliminary objection must be argued on the assumption that all the facts pleaded by the other side are correct, and it cannot be raised if any factual matter has to be investigated or proved. 2. The Plaintiffs submit that the Defendants’ objection is not a pure point of law because it requires the Court to investigate several mixed questions of law and fact. They argue that the Court would have to examine the precise nature of the causes of action, determine the exact dates of accrual, evaluate the legal impact of the demand letters exchanged in August 2024, and assess whether all the reliefs, including the special damages for physical damage to property, fall under the scope of Section 3(1) of Chapter 39. 3. Citing the Supreme Court decision in **Independent Electoral & Boundaries Commission vs Cheperenger & 2 others [2015] eKLR**, they emphasize that any objection founded on contested facts must be deferred to a trial on the merits. Finally, they argue that striking out a suit is a drastic measure that denies a litigant the right to a fair hearing under Article 50 of the Constitution, and they implore the Court to allow the matter to proceed to a full trial. **Issues, Analysis and Determination** 1. The sole issue before the court for determination is both the competence and merit of the Notice of Preliminary Objection. The court must interrogate and be satisfied that the points raised and indeed pure points of law capable of disposing the matter ad otherwise not matters that must be proved by evidence beyond the admitted or incontestable facts before it delves into the merits. 2. On competence, the standard for a proper preliminary objection was established in the landmark decision of **Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA**, where it was defined to be a pure point of law that arises directly from the pleadings and, if argued as a preliminary point, may dispose of the suit. In other words, a proper objection must be argued on the assumption that all the facts pleaded by the opposite side are correct, and it cannot be raised if any fact has to be investigated or proved. This position was reiterated by the Supreme Court in the cited case of **Independent Electoral & Boundaries Commission vs Cheperenger & 2 others [2015] eKLR**, where it was held that a preliminary objection must be founded on a settled, crisp point of law whose application to undisputed facts leads to only one conclusion. 3. In the circumstances here, while the Plaintiffs argue that the question of when the cause of action accrued and the impact of their demand letter are mixed questions of law and fact that cannot be resolved without a trial. The Court is not persuaded by that argument. A careful reading of the Plaint and the accompanying Verifying Affidavit reveals that the critical dates are completely uncontested; the acquittal, contained in a public record, took place on the 28th day of February 2024, yet the Plaint was presented on the 22nd day of September 2025. The Plaintiffs have confirmed these dates in their own pleading including the Replying Affidavit. When a party asserts a fact and his adversary reiterates the same, that cannot by any imagination be termed a contested fact. 4. Because the dates are clear on the face of the pleadings and are not in dispute, applying a statutory limitation period is a pure question of law that fits within the *Mukisa Biscuit* standard. The Defendants’ Preliminary Objection is on pure point of law on limitation of actions and therefore wholly competent. 5. On the merits, the determination must beg the question whether the Plaintiffs’ suit is statute-barred under Section 3(1) of the Public Authorities Limitation Act, Chapter 39. The said section provides that no civil action in tort shall be brought against the Government after the end of twelve months from the date on which the cause of action accrued. 6. The 1st Defendant is the principal legal adviser to the government while the 3rd Defendant is a state organ. Both are public entities performing public duties on behalf of the state, and they are protected by the provisions of Chapter 39. Therefore, in determining whether the twelve-month limit had expired on the date the plaint was filed, the Court must identify when the cause of action accrued. In a civil claim for malicious prosecution, the cause of action does not accrue until the underlying criminal proceedings have terminated in the plaintiff's favour. This rule is founded on the logical principle that a plaintiff cannot claim a prosecution was malicious or lacking in probable cause while the trial is still active. The damage occurs, and the right to sue arises, on the day of acquittal. 7. Here, the legal end was achieved on the 28th day of February 2024. Under the strict terms of Section 3(1) of Chapter 39, the Plaintiffs’ right to bring this action against the state expired on the 28th day of February 2025. The Plaint having been filed on the 22nd day of September 2025, was done nearly seven months after the statutory window had closed. 8. Is it the law as posited by the plaintiffs that their demand letter dated the 19th day of August 2024 suspended the limitation period!? The court takes the learning that the mere writing of demand letters or the pursuit of amicable settlement does not stop the running of a statutory limitation period unless the defendant does an acknowledgment or commitment with the effect of reviving a barred cause of action. 9. The position of the law was reiterated by the Court of Appeal in **Edward Fondo Kalama & Another v County Government of Kilifi [2024] eKLR** when it was held that the limitation periods under Chapter 39 are strict and must be enforced, warning that legal indolence is fatal and equity does not aid the indolent. A party can only preserve a claim beyond the statutory limit by executing a formal standstill agreement with the public authority before the limitation period expires, which did not occur in this case. 10. Lastly, does the apparent multi-layered nature of the Plaintiffs’ claims change the position and merit of the preliminary objection? Alongside the claim in tort of malicious prosecution, the plaintiffs seek special damages of one million forty-three thousand shillings for physical damage caused to the vehicle’s tyres, battery, leaf springs, and braking system during its 143-day detention at Kalokol Police Station. The detention of the vehicle ended when it was released on the 24th day of March 2023. A claim for physical damage to property is a claim in tort. Under Section 3(1) of Chapter 39, any action in tort against a public authority must be brought within twelve months of accrual. 11. If the cause of action for damage to the vehicle accrued when the detention ended on the 24th day of March 2023, the twelve-month period within which to sue for those damages expired on the 24th day of March 2024. If it is treated as a consequential damage flowing from the alleged malicious prosecution, it accrued upon acquittal on the 28th day of February 2024, and the right of action expired on the 28th day of February 2025. Under either calculation, the filing of the Plaint on the 22nd day of September 2025 occurred long after the statutory time limits had expired. 12. Accordingly, all the claims in tort are therefore caught by the statutory time-bar. Having chosen to litigate in the common law arena, they are bound by the statutory rules of civil litigation, including the limitation periods under Chapter 39. 13. In the upshot, the court holds that the question of time limitation goes directly to the jurisdiction of the Court. Once a suit is found to be statute-barred, the right of action is extinguished, and the Court is stripped of the jurisdiction to grant any remedy or relief. As the Court of Appeal held in **Divecon v Samani** the proper order when a suit is time-barred is to strike it out. That the 1st and 3rd Defendants filed their joint Statement of Defence approximately five months late without seeking leave of the Court not the accurate position of the law but a mere irregularity that does not defeat the otherwise merited Preliminary Objection. It cannot be an accurate position of the law because there is no legal requirement that a defendant seeks the leave of the court to file a defense unless the plaintiff has sought and obtained a default judgment. 14. Accordingly, and flowing from the foregoing discussions and conclusions, the Court upholds the Preliminary Objection dated the 3rd day of February 2026. The Plaintiffs’ suit dated the 22nd day of September 2025 is hereby struck out with costs. Dated, signed and delivered virtually this 30th day of July, 2026. Patrick J O Otieno Judge