Bosire Gichana & Company Advocates v Kisii County Government

b. 6. Whether the preliminary objection is merited. The threshold for preliminary objections was laid down in the celebrated case of Mukisa Biscuits Manufacturing Co Ltd V Westend Distributors [1969] EA 696 where it was held as follows: “ So far as I’m aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a Preliminary point may dispose of the suit.” Similarly, Sir Charles Newbold in the same case held as follows: “The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop” 7. On whether the preliminary objection meets the threshold, it is not disputed that the same is based on Section 4 of the limitation of actions Act. The objection is thus purely on a point of law. 8. On whether the decree herein is time barred, the respondent argued that the decree is time barred .by virtue of Section 4(4) of the limitation of Actions Act. The exparte applicant argued that the application was filed within the required timelines in 2023 and cited the case of Hudson Moffat Mbue v Settlement Fund Trustees & 3 Others ELC NO. 5704 of 1992 (OS) (UR), Mutungi J., 9. Section 4(4) of the same Act provides that ‘’An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.’’ 10. In Willis Onditi Odhiambo v Gateway Insurance Co. Ltd KSM Civil Appeal No. 37 of 2013 [2014] eKLR, the Court of Appeal observed that: In other words, the applicant wanted to execute the said decree against the respondent out of time. Execution of judgments and/or decrees is governed by section 4(4) of the Limitation of Actions Act which is in the following terms: 4(4) an action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered. 11. In the cited Hudson Moffat Mbue v Settlement Fund Trustees & 3 Others ELC NO. 5704 of 1992 (OS) (UR), Mutungi J., while considering the application of section 4(4) of the Act where an application for execution of judgment had been brought before the expiry of the 12 years had lapsed but was determined until after the period had expired observed thus: What I understand the law to be is that once a judgment has been rendered, execution of that judgment must be commenced within the 12 year period otherwise you cannot obtain a judgment and fail to do anything about it and after 12 years have expired seek to execute https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19783/eng@2025-10-21 2

page 2 of 3

the same. Section 4(4) of the Limitation of Actions Act will bar you from carrying on with such execution. 12. From the cases as above cases, it is clear that an action under section 4(4) of the Act includes enforcement/execution proceedings. The purpose of time limitations is to ensure that litigation comes to an end. Judgment was entered on 17.12.2018 and thus as at 2023 when this matter was filed the judgment was 5 years old. The judgment dated 17.12.18 was not challenged and it is a judgment of a court of equal jurisdiction with this court. This court lacks jurisdiction to reverse the same. No appeal or revision has been filed against the same. The argument by the respondent cannot therefore, stand as limitation period for filing of the motion has not caught up with the matter before this court. The motion herein is this not time barred as argued. On interest Section 4(4) of the Act provides that it will be limited to 6 years after judgment. 13. The preliminary objection dated 30.7.24 thus partially succeeds on the issue of interest which was accrued 6 years after the decree only. Each party to bear his own costs. DELIVERED VIRTUALLY ON THIS 21ST DAY OF OCTOBER 2025 IN THE PRESENCE OF: T.A ODERA JUDGE 21. 10.25 Miss Nyaenya for the Exparte Applicant N/A for the Respondent Court Assistant Mr. Kipchirchir Nyaenya: We seek a mention for directions on the motion. Order: Mention on 17.12.25 for directions on the main motion. Mention notice to issue. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19783/eng@2025-10-21 3

page 3 of 3