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Court of AppealDismissedCivil Appeal (2nd appeal from HCCA No. 108 of 2013)

Sea Angel Service Station Limited v Abdul (Civil Appeal E126 of 2022) [2025] KECA 172 (KLR)

Court of Appeal of Kenya
7 February 2025
DMD. K. MusingaKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
3,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you cannot sue on a contract debt after six years, and no court can extend that deadline.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Musinga, P, Laibuta and Ngenye-Macharia, JJAA) dismissed a second appeal by Sea Angel Service Station Ltd against the High Court's decision allowing Yusuf Abdul's appeal on limitation grounds. The appellant had sued in 2006 to recover Kshs. 281,604 for petroleum products supplied between May and June 1998, contending that payment became due on demand made on 25th November 2000, and that the trial court's leave to file out of time was unimpeachable. The High Court (P. J. O. Otieno, J.) held the cause of action accrued on 15th July 1998, when the last invoice fell due under the contract's payment condition, rendering the suit time-barred under section 4(1) of the Limitation of Actions Act, with no power to extend time for contract actions. Confining itself to matters of law on second appeal under section 72(1) of the Civil Procedure Act, the Court of Appeal declined to disturb the concurrent factual findings below and endorsed the High Court's reasoning. Relying principally on Divecon v Samani, Rift Valley Railways v Musonye and Pius Kimaiyo Langat v Co-operative Bank, the Court reaffirmed that no court may extend time to file an action founded on contract, since Part III of the Limitation of Actions Act does not apply to contract claims. The appeal was dismissed with costs to the respondent and the High Court judgment and decree of 3rd May 2017 was upheld.

Questions the Court framed

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

  1. 1.whether the learned Judge was at fault in holding that the appellant’s suit against the respondent was statute barred
  2. 2.whether the trial court had jurisdiction to enlarge time to file suit out of time

Key legal issues

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01

Whether the appellant's suit was statute barred

Holding

The claim, founded on contract, accrued on 15th July 1998 and had to be filed by 14th July 2004; the suit filed on 30th June 2006 was time-barred under section 4(1) of the Limitation of Actions Act.

Reasoning

The Court adopted the concurrent findings of the two courts below that the last invoice was payable by 15th July 1998, when the cause of action in contract accrued. Section 4(1) of Cap. 22 bars actions founded on contract brought after six years. A demand letter was not the determining factor for accrual; an invoice is itself a formal demand for payment.

p. 5
02

Whether a trial court has jurisdiction to enlarge time to file a suit founded on contract

Holding

It does not. Part III of the Limitation of Actions Act, which allows extension in limited cases (disability, acknowledgement or part payment, fraud or mistake, ignorance of material facts), does not apply to actions based on contract.

Reasoning

The Court relied on its prior decisions in Divecon v Samani, Rift Valley Railways v Musonye and Pius Kimaiyo Langat v Co-operative Bank, holding that where a statute limits time, extension is only possible if the statute itself so provides. The grounds in the appellant's ex parte summons did not fall within Part III.

p. 5

Legal principles established

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  • No court may extend time to file an action founded on contract beyond the six-year period under section 4(1) of the Limitation of Actions Act, because Part III of the Act does not apply to contract actions.
  • Where a statute limits time for bringing an action, no court has power to extend that time unless the statute itself allows extension.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Judgment and decree of the High Court of Kenya at Mombasa (P. J. O. Otieno, J.) dated 3rd May 2017 in HCCA No. 108 of 2013 upheld

The bench

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

DM
majority
KL
majority
GN
majority
On appeal from
High Court of Kenya at Mombasa
HCCA No. 108 of 2013
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (2nd appeal to the Court of Appeal on points of law)

Relief refused

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Appellant's prayer to have the High Court judgment set aside and the subordinate court judgment upheld

The claim was statute-barred and the trial court lacked jurisdiction to extend time for actions founded on contract

p. 6

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.

we reach the inescapable conclusion that the appeal lacks merit and is hereby dismissed with costs to the respondent. Consequently, the judgment and decree of the High Court of Kenya at Mombasa (P. J. O. Otieno, J.) dated 3rd May 2017 in HCCA No. 108 of 2013 is hereby upheld. Orders accordingly.
p. 6Final orders - dismissal and upholding of the High Court judgment
Section 4(1) (a) of Cap. 22 places a statute bar to any action purported to be brought more than six years after the cause of action accrued. Neither does the Act allow extension of time to file suits founded on contract out of time.
p. 5Limitation - contract actions
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.
p. 6Jurisdiction to extend limitation periods

Issues in the judgment

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minor

High Court judgment quoted with internally duplicated/inconsistent paragraph numbering (paragraphs 26 and 27 appear twice)

minor

Judgment states the trial court judgment was 'dated 31st July 2015' in one passage and 'dated 31st July 2013' in the opening paragraph

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Sea Angel Service Station Limited v Abdul (Civil Appeal E126 of 2022) [2025] KECA 172 (KLR)", Case Analysis (2025). Civil Appeal (2nd appeal from HCCA No. 108 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/172/eng@2025-02-07

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