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Court of AppealDismissedCivil Appeal 102 of 2019· [2022] KECA 1241 (KLR)

Mutua v CFC Stanbic Bank (K) Ltd

Court of Appeal
4 November 2022
3,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a lawsuit filed after the three-year deadline is dead on arrival, no matter how it is later reworded.

What this practically means

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Executive summary

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This second appeal arose from a workplace injury claim by Alfred Mutinda Mutua against his employer, CFC Stanbic Bank, filed on 29 July 2004 in relation to an accident of the same date, but pleaded with particulars of breach of duty of care and negligence rather than breach of contract. The Chief Magistrate's Court struck out the suit on a preliminary objection that the tort claim was statute-barred under the three-year limitation period in section 4(2) of the Limitation of Actions Act. The High Court (Chepkwony J) dismissed the appellant's first appeal, holding that the preliminary objection raised a pure question of law, that the pleadings disclosed a claim in tort only, and that the claim was time barred. The Court of Appeal (Murgor, Nyamweya and Lessit JJA) dismissed the second appeal. Confined to points of law under section 72(1) of the Civil Procedure Act, the court held that parties are bound by their pleadings: since no particulars of breach of contract were pleaded, the cause of action lay in tort. It distinguished Kenya Cargo Handling Services Ltd v David Ugwang, where the plaintiff had specifically pleaded breach of an implied contractual term. The court further held, following Anaclet Kalia Musau v Attorney General, that limitation is a jurisdictional question; a statute-barred suit cannot be entertained and the defect could not be cured by amendment or Article 159. The High Court's decision was affirmed, with costs to the respondent.

Key legal issues

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01

Whether the cause of action was founded on tort or contract

Holding

The cause of action lay in tort; particulars of breach of contract were never pleaded, and parties are bound by their pleadings

Reasoning

The further re-amended plaint pleaded negligence and/or breach of duty of care, with particulars of breach of duty of care only. No particulars of breach of contract were pleaded. Citing Malawi Railways v Nyasulu via Michael Mbogo Kibuti, the court held pleadings define the claim and a party cannot rely on unpleaded matters. Kenya Cargo Handling was distinguished because that plaintiff pleaded breach of the implied contractual term.

p. 5
02

Whether the suit was time barred and whether limitation is curable

Holding

The tort claim, filed over three years after the cause of action, was statute-barred under section 4(2) of the Limitation of Actions Act; limitation is jurisdictional and incurable by amendment

Reasoning

The claim in tort was brought more than three years after the accident. Relying on Anaclet Kalia Musau v Attorney General, the court held that limitation is a jurisdictional question and a statute-barred matter cannot be entertained. The defect was therefore not a mere procedural technicality curable under Article 159 or by amendment.

p. 6
03

Whether the High Court's decision was perverse or based on extraneous matters

Holding

The High Court exercised its jurisdiction guided by the law and considered no extraneous matters; there was no basis to interfere

Reasoning

Applying the second-appeal standard in Stanley N Muriithi v Bernard Munene Ithiga, the court found the High Court neither considered matters it should not have, nor failed to consider relevant factors. Reliance on James Omukhala Otieno did not affect the outcome given the limitation finding, so the stare decisis argument also failed.

Legal principles established

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  • A party is bound by its pleadings; the pleadings determine the basis of the claim and a party cannot rely on what was not pleaded
  • Limitation is a jurisdictional question; a statute-barred suit cannot be entertained by a court and cannot be cured by amendment
  • On a second appeal the Court of Appeal confines itself to matters of law

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Limitation of Actions Actsection 4(2)
  • Limitation of Actions Actsection 27(1)
  • Civil Procedure Actsection 72(1)
  • Civil Procedure Rulesorder 2, rule 1
  • Civil Procedure Rulesorder 2, rule 3(1)
  • Civil Procedure Rulesorder 2 rule 3(4)
  • Constitution of Kenyaarticle 159

Cases cited (13)

  • Hassan Charo v Khatib Mwashetani & 3 others
    Supreme Court of Kenya Petition Application No 23 of 2015

    A preliminary objection may only be raised on a pure question of law

  • DT Dobie & Company (K) Ltd v Joseph Mbaria Muchina & another
    [1980] eKLR

    Power of striking out pleadings is not mandatory; no suit should be summarily dismissed unless hopeless

  • Kenya Cargo Handling Services Ltd v David Ugwang
    [1982-1988] 1 KAR 672

    Workplace injury may give rise to a claim in both contract and tort; distinguished on its pleadings

  • Kenya Power & Lighting Company Ltd v Collins Agumba Aboge
    [2016] eKLR

    Whether a claim is founded on tort or contract is based on the substance of the claim as set out in the pleadings

  • Kiamokama Tea Factory Company Ltd v Joshua Nyakoni
    HCCA No 159 of 2009; [2015] eKLR

    Cited by both sides on tort/contract distinction where breach of contract was not pleaded

  • James Omukhala Otieno & another (suing as the personal representatives of the estate of Wilson Okate Omukhala (deceased) v Lomolo 1962
    [2019] eKLR

    Proposition that a matter cannot be two faceted, based on both tort and contract

  • Ekuru Aukot v Independent Electoral & Boundaries Commission & 3 others
    [2017] eKLR

    Court declaring a case decided per incuriam

  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR, Civil Appeal No 60 & 62 of 2017

    Principles for lodging a second appeal; perversity standard

  • Stanley N Muriithi & another v Bernard Munene Ithiga
    [2016] eKLR

    Second appeal confined to matters of law; failure to re-evaluate evidence is a point of law

  • Michael Mbogo Kibuti v Attorney General
    [2020] eKLR

    Cited with approval Malawi Railways v Nyasulu on the binding nature of pleadings

  • Malawi Railways Ltd v Nyasulu
    [1998] MWSC 3

    Parties are bound by their own pleadings and cannot raise a different or fresh case without due amendment

  • Anaclet Kalia Musau v Attorney General & 2 others
    [2020] eKLR

    Time limitation is a jurisdictional question; a statute-barred matter cannot be entertained

  • Robin Cahill & 9 others v TS Nandhra & 3 others

    Cited by respondent on the principles of stare decisis

On appeal from
High Court at Mombasa
HC Civil Appeal No. 150 of 2016
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal confined to points of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mutua v CFC Stanbic Bank (K) Ltd", Case Analysis (2022). Civil Appeal 102 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1241/eng@2022-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.