Time limitations on taking legal action…is your claim time-barred?

What are time limitations and why do they exist?

There are instances where a person may institute a claim in court and the suit is subsequently struck out because it is time barred. This is because Kenya’s Limitation of Actions Act, amongst other pieces of legislation, fixes a time limit within which an action must be brought.

Statutes that limit actions on legal claims are an essential feature of the Kenyan legal landscape. The policy rationale for this limitation is the promotion of justice by preventing surprises through the revival of stale claims where a person has slept on his rights until all evidence has been lost, memories have faded, and/or witnesses have disappeared. It is intended to run against people with legal claims who either neglect their rights or fail to be timely in the enforcement of these rights. It should however be noted that the Limitation of Actions Act does not extinguish a suit or action but rather operates to bar the claim or remedy sought. As such when a suit is time-barred, the court cannot grant any remedy or relief. The effect is that if a suit is brought after the expiration of the period of limitation, the plaint will be rejected.

It should be noted that time bars can also be imposed by contract and not just by legislation alone. Contractual time bars are prevalent in construction contracts. A time bar is a provision in a contract that requires a party to make a claim or take other action within a specified time. If an event happens giving rise to a claim and the aggrieved party fails to claim within the agreed timelines, the claiming party will lose its right to make the claim and the claim will be deemed as “barred.” It is therefore important to read contracts fully and understand all clauses before signing them.

Tied to this rationale of time bars is the doctrine of laches. Laches is a defense that a defendant in a suit can rely on where a suit has been instituted against him. A defendant who invokes the doctrine of laches is telling the court that the plaintiff has so delayed in enforcing its rights to an extent that it would be unfair to do so now and is therefore no longer entitled to bring a claim.  The core principle at work is that “Equity aids the vigilant, not the negligent.”

Knowing the statutory limitation periods can save you a lot of time and money

It is essential to know the statutory time bars to institute a suit to avoid incurring expenses on suits that will ultimately be struck out. In Kenya, the question of time limitation touches on the court’s jurisdiction since a court cannot hear a matter that is time-barred. The starting point for the running of time is usually the day on which the cause of action accrues. An action must be instituted within the relevant limitation period. If the limitation period has lapsed whether under law or contract, then the defendant has a full defense to the claim.

We set out below a table of some of the statutory timelines for instituting suits with SMC Legal’s comments on the same. Please note that this is not an exhaustive list.

	What the claim relates to	Timelines	SMC Legal Comments
1.	contracts	Six (6) years	The cause of action accrues on the date of the breach of contract
2.	Action to recover land	Twelve (12) years	Relates to the doctrine of adverse possession
3.	Tort claims against the Govt or a public authority	One (1) year	Section 3(1) of the Public Authorities Limitation Act provides for this
4.	Tort claims against the Govt or a public authority	Three (3) year	Section 3(2) of the Public Authorities Limitation Act provides for this
5.	Contract of Employment	Three (3) years	Section 90 of the Employment
6.	Libel, slander or defamation	One (1) year
7	Competition law violations	Three (3) years	Section 86 of the Competition Act provides that an investigation into an alleged infringement of the Act may not be initiated after three years from the date the infringement has ceased
8.	Appeals originating from a subordinate court	Thirty (30) days from the date of the decree or order appealed against	Section 95 of the said Civil Procedure Act gives the court discretion to extend the time as it deems fit even if the time originally fixed has expired.
9.	Application for setting aside the arbitral award	Three (3) months	Section 35 of the Arbitration Act bars any challenge even for a valid reason after 3 months from the date of delivery of the arbitration award. This is line with the principle of expedition and finality in arbitration.

What happens in the case of recurring wrongs?

Recurring wrongs are especially seen in tort law. A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for a person can be paid damages. An example is if a neighbor is causing a nuisance by persistently playing loud music every night. In continuing or recurring torts, the right of action accrues afresh every day.

Are there ways around the time limits set under the Limitation of Actions Act

In certain rare instances, the court may extend time where there is reasonable cause for the delay and the claimant has given sufficient and reasonable reasons and proof for any delay on its part.

Further, where a party can demonstrate that important facts relating to the cause were at all times not within their knowledge, they can apply to the court for an extension of time to allow them to file the suit. However, for this extension to be granted, the cause of action must be based on tort and must relate to the torts of negligence, nuisance, or breach of duty and the damages claimed are in respect of personal injuries as a result of the tort.

We hope this content has been useful to you. If you need assistance in assessing whether your claim is time-barred, please reach out to Divinah Ongaki (dso@smc-legal.com).