George v Dutch Water Limited (Commercial Case E053 of 2026) [2026] SCC 117 (KLR)

5. The Law of Limitation of Actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending Plaintifi or Claimant as in this case, to exercise reasonable diligence and to take reasonable steps in his own interest. I rely on the Court of Appeal decision Gathoni vs Kenya Co-operative Creameries Ltd (1982) KLR 104. 6. As stated earlier, parties are bound by their pleadings and he who alleges must prove. That said, despite the Claimant pleading in the statement of claim that the basis of the claim is a contract entered into on 1st September 2012, he goes ahead to introduce new causes of action in his submissions in the nature of the tort of conversion. Submissions do not constitute pleadings or evidence as they do not define the dispute. 7. Nowhere in the body of the statement of claim is the tort of conversion pleaded. What the Claimant has pleaded is that in blatant breach of agreement and several call reminders made upon the issue, Claimant realized that there was no transparency and trust on the Respondent which made the Claimant to conclude that the Respondent refused and ignored the issue up-to-date. That as a result of the Respondent's breach, the Claimant has sufiered loses and damages. 8. The Claim of Conversion therefore was not pleaded for the court to determine. Even so, for a claim in the tort of conversion to succeed, the Claimant must establish that the Respondent unlawfully took possession of his property with the intention of asserting a right over it that is inconsistent with his ownership. Similarly, for a claim in detinue to succeed, it must be demonstrated that the Respondent wrongfully withheld the title and refused to release it without a lawful excuse. I find guidance in Kingdom Bank Limited v Muchugia (Commercial Case E069 of 2024) [2025] KEHC 3367 (KLR) (Commercial & Admiralty) (17 March 2025) (Judgment). 9. In the instant case, the contract of 1st September 2012 in the paragraph titled “Excess Materials”, it provides that all materials remaining after completion of the work shall belong to DWL. This contract has not been disputed and neither has the fact that the work was completed as per the statement of claim. Additionally, the contract addendum dated 19th February 2013 states that all hardware on site will, as of the date of this letter, belong to DWL. This court thus finds that the items claimed by the Claimant belong to the Respondent. 10. Finally, the Claimant relies on a purported valuation report dated 20th December 2012 that was sent on 19th December 2025 to the Respondent. Upon perusal of the same, this court finds that the said document makes no reference to the contract between the parties neither does it refer to the Respondent. There exists no direct nexus between the document dated 19th December 2012 and the Claim herein, it could have been meant for anyone or any other intended purpose. No evidence has been led to show that the Claimant was requested to prepare an inventory as alleged and neither is there evidence of ownership and continued demand by the Claimant, crucial to the tort of conversion. This court therefore finds that the claim of conversion has not been substantiated by the Claimant. 11. On the issue of time limitation, Section 4(1)(a) of the Limitation of Actions Act Cap 22 provides that:The following actions may not be brought after the end of six years from the date on which the cause of action accrued— a. 12. actions founded on contract; In Civil Appeal 39 & 40 of 2016- Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another [2016] KECA 213 (KLR), the Court of Appeal held that where a statute limits time for bringing an action, no court has the power to extend that time, unless the statute itself allows extension of time. In the instant case, the contract between the Claimant and the Respondent began https://new.kenyalaw.org/akn/ke/judgment/scc/2026/117/eng@2026-04-29 2

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on 1st September 2012 and was terminated on 23rd April 2013. Thereafter, there was no engagement between the parties until the Respondent was served with the letter by the Human Rights group dated 19th December, 2025. The Claimant filed this suit on 20th January 2026 being a period of over 12 years since the contract was terminated in the year 2013. This is way beyond the 6-year period. As such, I find that the Claim herein is time barred and strick out the same with no orders as to costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……29TH …. DAY OF……… APRIL… 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; ……Mr. Ondiwa…. for Claimant; …N/A…… for Respondent C/A Sabina https://new.kenyalaw.org/akn/ke/judgment/scc/2026/117/eng@2026-04-29 3

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