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High CourtStruck OutNot stated in the extract (High Court civil suit, amended plaint dated 30th March 2015)· [2020] KEHC 9371 (KLR)

Uzima Publishing House Ltd v Kenya Literature Bureau & others (preliminary objection on limitation)

High Court of Kenya
22 January 2020
WOW. A. Okwany
3,102 words in judgment
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·~12 min to read original · ~4 min brief

The bottom line

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Filing a lawsuit too late, even if you were negotiating a settlement, will likely result in the case being dismissed by the court.

What this practically means

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Executive summary

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The plaintiff, a publishing company, sued the defendants claiming special damages and/or a declaration that it was entitled to full compensation for breach of written agreements made between 1997 and 1999, under which it bore all costs of producing, publishing and marketing 14 school textbooks and paid royalties to the defendants. It alleged that in 2000 it discovered the Ministry of Education had withdrawn music and art as examinable subjects, and that the defendants summarily dismissed it from competing with other publishing houses, claiming total loss of Kshs 66,859,971. The 1st defendant raised a preliminary objection that the suit, filed in 2012, was time barred under the Limitation of Actions Act. The plaintiff argued the claim was a continuing infringement of contract of copyright not subject to limitation, and that settlement negotiations and estoppel barred the limitation plea. The 1st defendant countered that the claim was predicated on a single act of withdrawal of music from the curriculum, that the plaintiff as publisher held no copyright, and that negotiations cannot suspend limitation. Justice W. A. Okwany held that parties are bound by their pleadings; the plaint contained no claim for loss of royalties, so the copyright argument failed. The claim was founded on breach of contract, accruing in 2000, and the suit filed in 2012 was 12 years late. No estoppel was established, the only material being an unsigned letter of 23rd August 2005. The preliminary objection was allowed and the plaintiff's suit struck out with costs to the defendant.

Key legal issues

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01

Whether the claim was one of continuing infringement of contract of copyright outside limitation

Holding

No; the claim as pleaded was for breach of contract, with no claim for loss of royalties, and accrued in 2000

Reasoning

The plaint pleaded agreements of 1997-1999 to produce, publish and market 14 books with royalties payable to the defendants. The plaintiff became aware in 2000 that music and art had been withdrawn as examinable subjects. The particulars of loss covered 1997-2001 and included no claim for royalties, so the copyright argument failed and Section 22 (six years for contract) applied.

p. 3
02

Whether estoppel or settlement negotiations barred the limitation plea

Holding

No; no contract not to plead limitation or conduct inducing such belief was established

Reasoning

The only material was an unsigned letter of 23rd August 2005 inviting a meeting; no admission of debt or settlement was shown. Following Rift Valley Railways v Musonye, negotiations cannot suspend limitation. Section 39 of the Act was not satisfied.

p. 4

Legal principles established

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  • Parties are bound by their pleadings; evidence at variance with the pleadings goes to no issue and must be disregarded
  • Negotiations towards settlement of a case do not suspend or extend the limitation period
  • A claim founded on breach of contract must be filed within six years of accrual under the Limitation of Actions Act

Court orders

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  1. 1.Preliminary objection by the 1st defendant allowed
  2. 2.Plaintiff's suit struck out
  3. 3.Costs of the suit to the defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 22
  • Limitation of Actions ActSection 39
  • Copyright Act Cap 130Section 23(3)
  • Companies Act

Cases cited (6)

  • David Stephen Gature v the Headmaster, Nairobi Technical High School & Another
    Civil Appeal No.79 of 1982

    Equitable estoppel where a party pursued negotiations in good faith and was not guilty of laches

  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Another
    [2016] eKLR

    Negotiations cannot suspend or extend limitation periods; quoting Divecon v Samani with approval

  • Divecon v Samani
    (1995–1998) I EA 48

    No court has power to extend statutory limitation unless the statute allows

  • Independent Electoral and Boundaries Commission & Anor. v Stephen Mutinda Mule & 3 others
    (2014) eKLR

    Parties are bound by their pleadings; evidence at variance with pleadings must be disregarded

  • Adetoun Oladeji (NIG) v Nigeria Breweries PLC
    SC 91/2002

    Importance of pleadings; parties cannot depart from their pleadings

  • Raila Amolo Odinga & Another v IEBC & 2 others
    [2017] eKLR

    No party should be permitted to travel beyond its pleadings; issues arise only from pleadings

Jurisdiction invoked
Original civil jurisdiction of the High Court; preliminary objection under the Limitation of Actions Act raised in the amended defence

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, "Uzima Publishing House Ltd v Kenya Literature Bureau & others (preliminary objection on limitation)", Case Analysis (2020). Not stated in the extract (High Court civil suit, amended plaint dated 30th March 2015). Source:

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