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Court of AppealDismissedCivil Appeal (High Court Civil Appeal from HCCC No. 6 of 2021, Malindi)

Omollo (Suing as the Legal Representative of the Estate of John Omollo Nyakongo (Deceased) t/a HR Ganihee & Sons) v Kenya Power & Lighting Company Ltd (Civil Appeal E021 of 2022) [2026] KECA 1071 (KLR)

Court of Appeal of Kenya
29 May 2026
1,447 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a six-year deadline to sue on a contract cannot be extended by a company's letter asking you to wait.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJAA) dismissed an appeal against the ruling of the High Court at Malindi (Githinji, J.) of 22nd February 2022, which had allowed Kenya Power and Lighting Co. Ltd's preliminary objection and struck out a suit seeking Kshs. 143,522,762/68 for construction works under a 2006 contract. The claimant died during the appeal and was substituted by his personal representative. The court framed two issues: whether the suit was statute-barred under section 4(1) of the Limitation of Actions Act, and whether the respondent's 2014 letter asking the claimant to hold the matter in abeyance revived the cause of action. Applying Divecon Ltd v Samani, the court held the action, filed in May 2021, was far outside the six-year limitation period. It further held, applying Gathoni v Kenya Co-operative Creameries Ltd and the English decision in Ace Insurance SA-NV v Seechurn, that neither the 2014 request to hold the matter in abeyance nor the 2018 express denial of liability amounted to an acknowledgement within section 44(1)(a) or a clear and unequivocal representation capable of founding an estoppel; only statutory events such as part-payment extend limitation. The appeal was dismissed with costs to the respondent. The decision affirms that denials of liability and requests to withhold action pending investigation do not revive time-barred contractual claims or suspend limitation.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the deceased’s suit was statute barred under and by virtue of section 4(1) of Cap. 22
  2. 2.if the answer is in the affirmative, whether the respondent’s letter (referred to by the deceased as an email) dated 25th July 2014 revived the deceased’s cause of action

Key legal issues

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01

Whether the suit founded on contract was statute-barred under section 4(1) of the Limitation of Actions Act

Holding

Yes; the cause of action accrued on or about 9th April 2012 and suit was filed in May 2021, beyond the six-year period.

Reasoning

Section 4(1) bars actions founded on contract brought after six years from accrual. The contract was concluded in April 2006 and the cause of action expired on or about 9th April 2012. The suit was instituted in May 2021, fifteen years after the contract, and this Court's decision in Divecon Ltd v Samani confirms that no action founded on contract may be brought or entertained after six years.

p. 3
02

Whether the 2014 letter requesting the claimant to hold the matter in abeyance revived the cause of action or raised an estoppel

Holding

No; the letter was not an acknowledgement within section 44(1)(a) and did not amount to an estoppel.

Reasoning

The letter merely requested the deceased not to take precipitate action pending investigations; it contained no clear and unequivocal representation that the respondent would not rely on limitation, no intention to be acted upon, and no detrimental reliance. In any event, suit was filed nine years later, so the cause of action had 'expired twice over'. Denial of liability and requests to withhold action do not of themselves constitute estoppel.

p. 3
03

Whether the respondent's 2018 letter denying liability revived the cause of action or raised an estoppel

Holding

No; an express denial of liability does not constitute an estoppel or extend limitation.

Reasoning

The 2018 letter expressly declined to pay any amounts over and above what had been paid. Following Gathoni v Kenya Co-operative Creameries Ltd, only statutory events such as part-payment can extend time; and per Ace Insurance SA-NV v Seechurn, promissory or equitable estoppel requires a clear and unequivocal promise, intention that it be acted upon, and detrimental reliance. An express denial satisfies none of these.

p. 3

Legal principles established

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  • A mere denial of liability, or a request that a claimant withhold proceedings pending investigation or negotiation, does not constitute an estoppel that revives a time-barred contractual cause of action or suspends limitation.
  • Only statutory events, such as part-payment, can extend the limitation period in contract; requests to hold a claim in abeyance do not.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya at Malindi
HCCC No. 6 of 2021 (ruling dated 22nd February 2022)
Jurisdiction invoked
First appellate jurisdiction over the High Court (Appellate Jurisdiction Act); appeal against the ruling of 22nd February 2022 allowing a preliminary objection

Relief refused

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Reversal of the High Court ruling striking out the suit as statute-barred

The suit, founded on contract, was brought 15 years after the contract; the 2014 letter requesting the claimant to hold the matter in abeyance and the 2018 denial of liability neither acknowledged the claim within section 44(1)(a) nor raised an estoppel.

p. 4

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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.
p. 3Limitation of contractual actions
As held by this Court in Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104, only statutory events, such as part-payment, can extend time.
p. 3Extension of limitation period
In conclusion, a mere denial of liability, or a request that a claimant withhold proceedings pending further investigation or negotiation, does not, without more, constitute a clear and unequivocal representation that the defendant will not rely on the limitation period.
p. 3Estoppel and limitation
In view of the foregoing, we find that the appeal lacks merit and is hereby dismissed with costs to the respondent. It is so ordered.
p. 4Final orders / disposition

Issues in the judgment

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minor

The judgment inconsistently names the trial judge, referring to 'F. N. Githinji, J.' in the opening paragraph but 'S. M. Githinji, J.' in the recitation of the ruling

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, "Omollo (Suing as the Legal Representative of the Estate of John Omollo Nyakongo (Deceased) t/a HR Ganihee & Sons) v Kenya Power & Lighting Company Ltd (Civil Appeal E021 of 2022) [2026] KECA 1071 (KLR)", Case Analysis (2026). Civil Appeal (High Court Civil Appeal from HCCC No. 6 of 2021, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1071/eng@2026-05-29

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