KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
3.2 Statutes of Limitations The statutes of limitations applicable to civil suits pre- scribe the timeframes within which different types of claims must be instituted, with the aim of ensuring legal certainty and preventing indefinite exposure to litigation. For contractual claims, the limitation period is general- ly six years from the date the cause of action accrues (Section 4 (1)(a) of Limitation of Actions Act). Actions to recover land based on adverse possession must be brought within 12 years (Section 7). Tort claims against the government or a public author- ity must generally be instituted within 12 months from the date on which the cause of action arises; where the claim is contractual against a public body, the limi- tation period is three years under Sections 3 (1) and (2) of the Public Authorities Limitation Act. The limitation period is usually triggered by the type of claim being asserted and the date on which the cause of action accrues. Consequently, an action must be instituted within the relevant limitation period, failing which the defendant may raise the defence of laches, effectively barring the claim. 3.3 Jurisdictional Requirements for a Defendant The court considers the area where the defendant actually and voluntarily resides, carries on business, or personally works for gain. Jurisdictional requirements also differ between courts in terms of pecuniary and subject-matter limits. Civil matters involving sums in excess of KES20 million are typically heard by the High Court. Subordinate courts have the following pecuniary lim- its: • a chief magistrate may hear cases not exceeding KES20 million; • a senior principal magistrate up to KES15 million; • a principal magistrate up to KES10 million; • a senior resident magistrate up to KES7 million; and • a resident magistrate up to KES5 million.
Specialised courts have their own jurisdictional limits. The Employment and Labour Relations Court hears disputes where the employee’s gross monthly salary exceeds KES80,000, while claims below this thresh- old are handled by the Magistrates’ Court. The Small Claims Court has a pecuniary jurisdiction of up to KES1 million, as set out in Section 12 (3) of the Small Claims Court Act. 3.4 Initial Complaint Civil suits in Kenya may be instituted either by way of a Plaint, a Statement of Claim, a Petition or Originat- ing Summons. These documents are accompanied by a verifying affidavit or a supporting affidavit and evidence in support which is produced through a wit- ness statement. Parties are allowed to amend their pleadings after fil- ing without leave of court before the pleadings are closed and this is typically done within 14 days. Once pleadings close, parties must seek leave of court in order to amend the pleadings. 3.5 Rules of Service Once a suit has been filed and the requisite fees are paid, the plaintiff takes out summons which are issued to the defendant to appear in court within a specified period. The summons shall be sealed by the court within 30 days of filing the suit. Service of summons is essentially the responsibility of the plaintiff and must be served by an authorised court process server, an advocate, a magistrate, an officer under the Police Act or Administrative Police Act or a licensed courier. Service of summons outside Kenya is allowed where the person sued is a necessary or proper party to the suit. A party seeking to serve summons outside Kenya must seek leave of court by filing an application in the High Court. Once leave is granted to serve summons in a foreign country, the notice shall be sealed with the seal of the High Court for use outside Kenya and then forwarded by the Registrar to the Foreign Affairs Cabinet Secre- tary, together with a copy translated into the language of the country in which service is to be effected and
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