Justice Delayed Is Justice Denied: The Doctrine of Limitation of Actions in Kenya

Overview

The principle that justice delayed is justice denied resonates deeply within Kenya’s legal system. This article interrogates the doctrine of limitation of actions as codified in the Limitation of Actions Act, Cap 22 Laws of Kenya, situating it within the broader discourse on access to justice, fairness, and finality. It also considers the application of limitation principles to rights and obligations arising from international treaties ratified by Kenya under the Constitution of Kenya, 2010. Through statutory analysis and judicial precedent, the paper explores how limitation periods mediate between litigants’ constitutional rights and the imperatives of efficiency and certainty in the administration of justice.

Introduction

The administration of justice requires both accessibility and timeliness. The Kenyan Constitution, 2010, enshrines the right of every person to access courts under Article 48, while simultaneously guaranteeing fair trial rights under Article 50. Yet, without mechanisms to regulate the timeliness of claims, litigation could become interminable, with courts bogged down by stale disputes. The Limitation of Actions Act thus performs a crucial role: ensuring that justice is not indefinitely deferred, while protecting defendants from prejudice occasioned by the effluxion of time.

Statutory Framework

The Limitation of Actions Act prescribes distinct limitation periods, which courts are generally bound to observe:

  1. Contractual claims: six years (s.4(1)(a)).
  2. Tort claims (other than personal injury): three years (s.4(2)).
  3. Personal injury claims: three years, subject to extension under s.27 where disability, mistake, or fraud is demonstrated.
  4. Actions for recovery of land: twelve years (s.7).
  5. Actions on a judgment: twelve years (s.4(4)).
  6. Actions to enforce arbitral awards: six years (s.4(1)(c)).

Sections 26 and 27 provide exceptions where fraud, mistake, or disability delay discovery of a cause of action. These provisions underscore the Act’s balancing function: the rigidity of time bars is tempered by equitable exceptions.

Limitations of Actions and International Treaties

Under Article 2(6) of the Constitution of Kenya, 2010, any treaty or convention ratified by Kenya forms part of the law of Kenya. This means that rights and obligations derived from international treaties—whether under human rights law, trade law, or investment law—are enforceable domestically, subject to the procedural requirements of Kenyan law.

The limitation of actions applies equally to such treaty-based claims, unless the treaty itself prescribes a different timeline. For example:

International human rights treaties (such as the International Covenant on Civil and Political Rights, ICCPR) often require exhaustion of domestic remedies within specified timeframes before petitioning international tribunals. Kenyan courts, while giving effect to such treaties, still enforce domestic limitation rules unless expressly excluded.

Investment treaties and arbitration agreements (e.g., under the ICSID Convention) frequently stipulate their own limitation periods for claims. Enforcement of arbitral awards in Kenyan courts remains subject to the six-year limit under s.4(1)(c) of the Limitation of Actions Act.

Regional treaties, including the Treaty for the Establishment of the East African Community (EAC Treaty), permit litigants to bring claims before the East African Court of Justice (EACJ), provided that the initiation occurs within two months of the cause of action. Kenyan courts respect these treaty-based limitation rules under the constitutional principle of pacta sunt servanda.

The implication is clear: treaty-based rights must be pursued diligently, both within the timelines set by the treaty mechanisms and the Limitation of Actions Act, where domestic enforcement is sought.

Judicial Interpretation

Kenyan jurisprudence reflects the tension between protecting litigants’ rights and enforcing statutory deadlines. Usually when parties pray to have their appeals heard out of time, it is trite that this Court has jurisdiction to extend time, the exercise of such jurisdiction being an issue of judicial discretion. Rule 15(2) of the Supreme Court Rules, 2020 are instructive on this. A request for extension of time is merited and warrants exercise of the court’s judicial discretion as the applicant has satisfied the principles set out in Nicholas Kiptoo Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, SC Application No.16 of 2014; [2014] eKLR on extension of time.

However, in Divecon Ltd v Samani [1995-1998] EA 48, the Court of Appeal held unequivocally that courts lack jurisdiction to extend time for causes of action outside the specific statutory exceptions. This principle extends to treaty-based claims brought in domestic courts unless the statute or treaty provides otherwise.

Justice Delayed as Denied Justice

The jurisprudential maxim justice delayed is justice denied is most poignantly felt where a litigant discovers, often too late, that their claim is statute-barred. While the denial of a hearing may appear harsh, the underlying philosophy is that rights must be pursued diligently. Allowing stale claims would undermine evidentiary integrity, perpetuate uncertainty, and erode public confidence in the judiciary.

Thus, limitation of actions operates not merely as a technical bar, but as a substantive safeguard ensuring that justice is timely, credible, and balanced. This principle applies with equal force to rights under treaties, which must be enforced within the timelines prescribed by both domestic and international law.

Conclusion

The doctrine of limitation of actions exemplifies the delicate balance between constitutional guarantees of access to justice and the imperative of finality in litigation. By insisting that claims—whether founded in statute, common law, or treaty obligations—be pursued within prescribed timeframes, the law affirms that justice, if it is to be meaningful, must be both timely and decisive.

At D. Otunga & Associates, we recognize that the maxim justice delayed is justice denied is not merely rhetorical. It is a guiding principle of our practice. Our commitment is to deliver expeditious, diligent, and client-centered legal representation, ensuring that claims are instituted within statutory and treaty-based timelines and prosecuted with efficiency. In so doing, we safeguard not only the rights of our clients but also the integrity of the justice system itself.

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