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Court of AppealDismissedCivil Appeal No. 244 of 2000

Mary Osundwa v Sugar Company Limited [2002] KECA 203 (KLR)

Court of Appeal
20 June 2002
ROR. S. C. OmoloASA. B. ShahMKM. Ole Keiwua
586 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that late contract claims cannot be saved — courts cannot extend limitation periods for contract suits, and no agreement between parties can change that.

What this practically means

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Executive summary

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The appellant sued Nzoia Sugar Company Limited for breach of a contract allegedly entered into in 1983, filing suit in the High Court at Kakamega in 1990, some seven years after the alleged breach. Faced with a limitation defence, she applied by notice of motion under section 27 of the Limitation of Actions Act and Order 50 rule 1 of the Civil Procedure Rules for an order deeming the suit filed in time and extending time retrospectively. By consent, Osiemo J granted that order on 28 May 1991. The suit was later dismissed by Tanui J, and the appellant appealed to the Court of Appeal at Kisumu. The Court of Appeal (Omolo, Shah and Keiwua JJ.A) held that section 27(1) confines the power to extend time to actions founded on tort - negligence, nuisance or breach of duty - where damages include personal injuries, and confers no jurisdiction to extend time for contract claims. It further held that the consent of the parties could not cure the want of jurisdiction, since parties cannot confer jurisdiction on a judge by agreement. Although the High Court had dismissed the suit on a different basis, the appellate court held the suit was bound to be dismissed on the pleaded limitation defence in any event. The appeal was dismissed with no order as to costs. The judgment binds lower courts on the limits of section 27 and on the principle that consent cannot confer jurisdiction.

Questions the Court framed

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

  1. 1.Whether the High Court had jurisdiction under section 27 of the Limitation of Actions Act to extend time for filing a suit founded on contract
  2. 2.Whether a consent order could confer jurisdiction on the court to extend time where the statute grants none
  3. 3.Whether the appeal should succeed notwithstanding that the High Court dismissed the suit on a different basis

Key legal issues

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01

Scope of the court's jurisdiction to extend time under section 27 of the Limitation of Actions Act

Holding

Extension of time is available only for tort actions for negligence, nuisance or breach of duty with personal-injury damages; contract claims fall outside the section.

Reasoning

The court reproduced section 27(1) and read its conditions restrictively: the action must be founded on tort, must concern negligence, nuisance or breach of duty, and damages must include personal injuries. A 1983 contract claim filed seven years after breach did not qualify, so Osiemo J had no jurisdiction to grant the retrospective extension.

p. 2
02

Effect of a consent order on want of jurisdiction

Holding

A consent order cannot cure an absence of jurisdiction; jurisdiction is conferred by law, not by agreement of the parties.

Reasoning

The extension order of 28 May 1991 was made by consent, but the court held that consent was irrelevant where the statute gave no power to extend time. Jurisdictional defects cannot be waived or conferred by the parties' agreement, so the order extending time was a nullity and the limitation defence specifically pleaded had to prevail.

p. 2
03

Whether the appeal could succeed where the court below dismissed on a different basis

Holding

The appeal failed because the suit was bound to be dismissed on limitation regardless of the basis adopted by the High Court.

Reasoning

Tanui J had dismissed the suit on a different ground, but the Court of Appeal held that the limitation defence specifically pleaded in the defence meant the suit was bound to fail in any event. The dismissal was therefore affirmed, with the appeal dismissed and no order as to costs.

p. 2

Legal principles established

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  • Section 27 of the Limitation of Actions Act permits extension of time only for actions founded in tort for negligence, nuisance or breach of duty involving personal injuries, not for contract claims.
  • Parties cannot by consent confer jurisdiction on a court where the statute grants none.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

The bench

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

RO
majority
AS
majority
MK
majority
On appeal from
High Court of Kenya at Kakamega
H.C.C.C. No. 85 of 1990
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a first-instance High Court decree (Civil Appeal No. 244 of 2000)

Relief refused

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The appellant's appeal against dismissal of her breach-of-contract claim

The suit was barred by limitation and the court had no jurisdiction to extend time for a contract claim; consent could not confer jurisdiction

p. 2

Costs

No order as to costs - each party to bear their own costs

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.

The section does not give jurisdiction to the court to extend time for filing suit in cases involving contract or any other causes of action other than those in tort.
p. 2Scope of section 27 Limitation of Actions Act
That the order was by consent can be neither here nor there; the parties could not confer jurisdiction on the judge by their consent.
p. 2Consent cannot confer jurisdiction
This appeal accordingly fails and we order that it be and is hereby dismissed but we make no order as to costs.
p. 2Final orders - dismissal and costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Osundwa v Sugar Company Limited [2002] KECA 203 (KLR)", Case Analysis (2002). Civil Appeal No. 244 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/203/eng@2002-06-20

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