Enochem Agrovet Limited v County Government of Kisii (Civil Case E007 of 2025) [2026] KEHC 660 (KLR) (16 January 2026) (Ruling)

Key Facts

Transaction Type

Issues

• The court must assess whether the Plaintiff's suit is time-barred under Section 3(2) of the Public Authorities Limitation Act, which allows three years from the cause of action. The Plaintiff claims a part payment in April 2022 restarted the limitation period, but the suit was filed in May 2025, one month after the period lapsed. The court found that part payment acknowledges debt and restarts the period, making the suit statute-barred. Authorities cited include Attorney General & Another v Andrew Maina Githinji & Another [2016] eKLR, which emphasizes that limitation statutes are mandatory and cannot be overridden by equity.
• The court must determine if the Preliminary Objection is defective. The Plaintiff contends that the objection is based on an affidavit sworn by the Defendant's Advocate, who deposed to contested matters of fact not within his personal knowledge. This is irregular as advocates should not swear affidavits on disputed matters, risking conversion to witnesses. Authorities cited include cases like Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Magnolia Pvt Limited v Synermed Pharmaceuticals (K) Ltd [2018] eKLR, which state that preliminary objections should be based on law, not evidence or affidavits.

Holdings

• The court determined that the Preliminary Objection is not defective, as the affidavit was sworn by the Defendant's Advocate on matters of law, which are not contentious facts. This aligns with legal precedents that allow advocates to depose on legal issues without undermining their role.
• The court found the Plaintiff's suit is time-barred under Section 3(2) of the Public Authorities Limitation Act. The part payment in April 2022 restarted the limitation period, which expired in April 2025. The suit filed in May 2025 was out of time, and limitation statutes are mandatory with no judicial discretion.

Remedies

• The costs of the suit are awarded to the County Government of Kisii as the successful party in the Preliminary Objection.
• Under Section 3(2) of the Public Authorities Limitation Act, the Plaintiff's suit is struck out as it is time-barred.

Legal Principles

• The court held that advocates may not swear affidavits on contested factual matters, as this converts them from counsel to witnesses. The defendant's affidavit was found defective for this reason.
• Part payment by the defendant was deemed an acknowledgment of debt, restarting the limitation period under the Act. However, the court concluded the suit was filed one month after the renewed period expired.
• The court applied the Public Authorities Limitation Act, which mandates a three-year time limit for contract proceedings against public authorities. The suit was struck out as it was filed outside this statutory period.

Precedent Name

• Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another
• Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
• Letang v Cooper
• Attorney General & Another v Andrew Maina Githinji & Another
• International Community of Women v NGO & Another
• Magnolia Pvt Limited v Synermed Pharmaceuticals (K) Ltd
• Regina Waithira Mwangi Gitau v Boniface Nthenge
• DJC v BKL (Civil Suit E021 of 2021)

Cited Statute

• Civil Procedure Act
• Public Authorities Limitation Act

Judge Name

Passage Text

• 19. It is trite law that part payment amounts to an acknowledgment of debt and has the effect of restarting the limitation period. Consequently, time began to run afresh in April 2022 and lapsed in April 2025.
• 24. Accordingly, the Plaintiff's suit is hereby struck out for being time-barred under Section 3(2) of the Public Authorities Limitation Act.
• 23. In the premises, the Court finds that the Preliminary Objection dated 23rd July 2025 is meritorious.

Damages / Relief Type