Kisima Homes Limited v Atik (Commercial Case E002 of 2026) [2026] SCC 20 (KLR)
The bottom line
#A Kenyan court allowed a creditor to sue after the usual deadline because the debtor had acknowledged the debt in writing, restarting the clock.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 19th January 2026 should be allowed.
Key legal issues
#Whether the applicant was entitled to leave to commence civil proceedings out of time in respect of a debt acknowledged by the intended respondent
Leave was granted; time started running on 23rd May 2023, the date the debt was acknowledged in the intended respondent's witness statement, under Section 23(3) of the Limitation of Actions Act.
The court found the applicant's delay was due to awaiting conclusion of ELC Case No. E005 of 2022. The intended respondent's witness statement dated 23rd May 2023 admitted the amount was a loan to be refunded, constituting an acknowledgement of debt. Section 23(3) provides that where a debt is acknowledged, the right of action accrues on the date of acknowledgement. The court followed Afrofreight Forwarders Ltd vs African Liner Agencies, holding that time runs from the date of the acknowledgement letter/statement.
Whether the applicant's earlier suit and application to set aside the judgment affected the position
The court observed that the suit was dismissed on jurisdictional (limitation) grounds which are substantive, not procedural, and that review jurisdiction was limited; the applicant could not set aside a judgment to regularize a defect the court had identified.
The court noted the suit was dismissed primarily as statute barred and no arguments were presented under section 23(3). An issue of jurisdiction is substantive. The application of 18/8/2025 sought to set aside the judgment to regularize the application for leave, but review jurisdiction is limited and the application did not meet the test for review. Leave to sue out of time must be filed as a miscellaneous application.
Legal principles established
#- Where a person liable for a debt acknowledges the claim, time under the Limitation of Actions Act begins to run on the date of the acknowledgement, not before.
- Leave to institute a claim out of time must be sought by way of a miscellaneous application, not by filing a statute-barred suit and seeking to regularize it.
Court orders
#- 1.The application dated 19th January 2026 is allowed
- 2.Leave is granted to commence civil proceedings against the respondent
- 3.A fresh suit to be filed within the next 7 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Leave to commence proceedings out of time pursuant to the Limitation of Actions Act (ex parte originating summons); Section 23(3) of the Limitation of Actions Act considered
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, I do find and hold that pursuant to the said section and the witness statement of the intended respondent dated 23rd May 2023, time started running upon acknowledgment of the debt to wit on 23rd May 2023.
There has always been a temptation by litigants to file a statute barred suit then seek to regularize the same which is always akin to putting the cart before the horse.
An issue to do with jurisdiction is never a procedural issue. It is a substantive issue.
The application dated 19th January 2026 is allowed and leave is granted to commence civil proceedings against the respondent.
Let a fresh suit be filed within the next 7 days in the spirit of order 2 of the application.
Issues in the judgment
#The judgment does not state the case number of the application before the court, referring only to 'the application dated 19th January 2026'.
The intended respondent is not named in the judgment, which refers only to 'the respondent' and 'intended respondent'.
The judgment appears to have typographical errors, e.g. 'refiects' and 'in action'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisima Homes Limited v Atik (Commercial Case E002 of 2026) [2026] SCC 20 (KLR)", Case Analysis (2026). Not stated in the judgment (ex parte originating summons dated 19th January 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/20/eng@2026-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.