Customary marriages that have not been registered are voidable and amenable only to annulment.
Headnote: The petitioner filed for divorce from the respondent from a marriage contracted under Kamba Customary Law citing grounds of cruelty and acts of exceptional depravity. The matter raised pertinent issues regarding the requirement to register customary marriages contracted before commencement of the Marriage Act (Cap 150). The court held that section 59 read with sections 3, 12(e), and 96 (2) & (3) of the Marriage Act provided that the parties bore the burden of exhibiting either a certificate of marriage or a certified copy of the certificate of marriage or an entry in a register of marriages maintained by the Registrar of Marriages or a certified copy of an entry in a register of marriages maintained by the Registrar of Marriages or an entry in a register of marriages maintained by the proper authority. The net legal effect of the provisions above was an ouster of application of the principles in Hottensiah Wanjiku Yawe vs. Public Trustee [1976] eKLR. Thus, all parties to a customary marriage who had not registered their marriage with effect from August 1, 2020, can only petition for annulment and not dissolution as they were considered voidable.

EMM v PMK (Divorce Cause E023 of 2023) [2024] KEMC 11 (KLR) (15 May 2024) (Judgment)
Neutral citation: [2024] KEMC 11 (KLR)
Chief Magistrate’s Court at Machakos
CN Ondieki, PM
May 15, 2024
Reported by Caroline Kennedy and John Ribia
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Family Law – marriages - customary marriage – divorce under customary marriage – Kamba customary marriage – proof of such marriage – whether a valid customary marriage contracted in accordance with the marriage rites of the Akamba community and compliant with the Marriage Act, 2014 amenable to divorce had been established by either parties or both – Marriage Act (Cap 150) section 6; Constitution of Kenya, article 45(4)
Family Law – marriages - dissolution of marriage – dissolution of customary marriage – grounds for dissolution of customary marriage – whether a customary marriage that was not registered by the deadline set by the Marriage Act of July 31, 2020 was voidable and liable for dissolution. – Marriage Act (Cap 150) section 69
Law of Evidence – burden of proof - standard of proof – burden of proof vis-à-vis standard of proof – burden of proof in divorce causes – standard of proof in divorce causes that alleged adultery - what was the burden and standard of proof in divorce causes – what was the standard of proof in divorce causes where adultery was alleged – Evidence Act (Cap 80) sections 107 and 108; Kamweru vs. Kamweru [2003] 2 EA 484; S.C.C. vs. M.K.C [2014] eKLR
Statutes – interpretation of statutes – Marriage Act (Cap 150) sections 3, 12(e), 59 and 96 (2) and (3) – provisions that required all customary marriages to be registered by July 31, 2020 what was the legal aftermath of failure to register a customary marriage by July 31, 2020 with effect from August 1, 2020 in relation to divorce proceedings – whether a party to a customary marriage which was not registered by July 31, 2020 with effect from August 1, 2020 could properly so, petition a court for dissolution of such a marriage - what was the legal effect of section 59 read with sections 3, 12(e), and 96 (2) & and (3) of the Marriage Act, 2014, on the Court of Appeal for East Africa’s decision in Hottensiah Wanjiku Yawe vs. Public Trustee [1976] eKLR, which enunciated the principles and manner of proving a customary marriage
Words and Phrases – voidable – definition – valid until annulled; a contract capable of being affirmed or rejected at the option of one of the parties, valid act that may be voided rather than an invalid act that maybe ratified – Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern by Henry Campbell Black, M. A., Ninth Edition, page 1709
Words and Phrases– voidable marriage – definition – a marriage that is initially invalid but that remains in effect unless terminated by Court order – Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern by Henry Campbell Black, M. A., Ninth Edition, page 1062

Brief facts
The petitioner contracted a marriage with the respondent in June 1987 as per Kamba Customary Law, within Machakos County in the Republic of Kenya. The parties lived as husband and wife at their matrimonial home at Katelembo until 2018 when several issues wore down the union. The petitioner alleged that the respondent was a person of ungovernable temper and had been committing acts of cruelty through physical and emotional violence. The respondent had attempted to stab the petitioner using a knife in May, 2018 and had frequently threatened to kill the petitioner. The petitioner further alleged that she was forced to move out of the matrimonial home in December, 2018 together with the children and that the respondent had since sold the land upon which the matrimonial home stood.
It was also alleged that the respondent had committed acts of exceptional depravity since 2018 through failure to maintain and educate their two children, denial of conjugal rights and desertion for 5 years. The petitioner attempted to salvage the marriage including use of traditional dispute resolution mechanisms with her brother and aid of elders but failed due to rejection by the respondent.
Consequently, the petitioner filed the present divorce petition.

Issues:
  1. What was the burden of proof in divorce causes?
  2. What was the standard of proof in divorce causes where adultery was alleged?
  3. Whether a valid customary marriage contracted in accordance with the marriage rites of the Akamba community and compliant with the Marriage Act, 2014 amenable to divorce, had been established by either parties or both.
  4. Whether a customary marriage that was not registered by the deadline set by the Marriage Act of July 31, 2020 was voidable and liable for dissolution.
  5. What was the legal aftermath of failure to register a customary marriage by July 31, 2020 with effect from August 1, 2020 in relation to divorce proceedings?
  6. Whether a party to a customary marriage which was not registered by July 31, 2020 with effect from August 1, 2020 could properly so, petition a court for dissolution of such a marriage?
  7. What was the legal effect of section 59 read with sections 3, 12(e), and 96 (2) and (3) of the Marriage Act, 2014, on the Court of Appeal for East Africa’s decision in Hottensiah Wanjiku Yawe vs. Public Trustee [1976] eKLR, which enunciated the principles and manner of proving a customary marriage?
  8. Whether a court could grant orders for dissolution of a customary marriage in a divorce petition.

Held:

  1. In relation to customary marriages, the Marriage Act (Cap 150) that was enacted in 2014 (the Act) heralded a revolution. The Act enacted a mandatory requirement that parties to a customary marriage contracted after the Act came into force, ought to apply for registration thereof within 6 months from the date of celebration of the marriage. Second, concerning valid customary marriages which pre-existed the Act, a framework for fixing a cut-off date for registration thereof, was enacted. The Act reduced divorce trajectories from two to one namely a divorce petition. A divorce Petition presupposed a valid marriage.
  2. In civil cases, broadly, the necessity of proof lay with the person who would failed if no proof was adduced. The obligation started with the claimant who must discharge the burden of proof placed on their shoulders to the required standard which was on a balance of probabilities guided by sections 107, 108 and 109 of the Evidence Act. The same applied to divorce causes.
  3. The burden of proof in divorce causes was on the person alleging adultery as there existed a presumption of innocence.As for the standard of proof, it was that the court must be satisfied on the evidence. The standard of strictness used in criminal cases could not be applied in divorce causes. A suit for divorce was a civil matter and not a criminal proceeding thus the analogies and precedents of criminal law had no authority in a divorce court. Although the word standard was equated to being satisfied as to be sure, the same had been equated as standard of proof for civil cases.
  4. Section 10 of The Matrimonial Causes Act (Cap 152) (repealed), set out the standard of proof required to prove a matrimonial offence. However, the Marriage Act, 2014, did not re-enact a similar provision. In the absence of a special standard prescribed by statute specifically for divorce causes, the ordinary standard of proof for civil cases prevailed. However, in S.C.C. vs. M.K.C [2014] eKLR, case law from the High Court subsequent to the Marriage Act, even after the repeal of the Matrimonial Causes Act, the standard of proof remained that of section 10 of the Matrimonial Causes Act (repealed).
  5. Notably, the ground of adultery and just like fraud in civil cases, had an elevated standard for proof above balance of probabilities but below beyond reasonable doubt. The evidence required to establish adultery must be more than mere suspicion and opportunity. The evidence of a guilty inclination or passion was undisclosed, but even the evidence of a single witness might suffice to establish adultery.
  6. Unlike a question of fact over which parties were the true custodians, a court of law being a guardian of the law, could not turn a blind eye to a question of law necessarily emerging from the facts and evidence presented by the parties in case committed to the court for determination.
  7. Section 3 of the Marriage Act, 2014, defined marriage as the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act. The definition was premised on article 45(2) of the Constitution which sanctions and circumscribed the ingredients of a legal marriage in Kenya. There were five recognised forms of marriage in Kenya as per section 6 of the Marriage Act, 2014 (civil, customary, Christian, Hindu, and Islamic). All marriages enjoyed the same legal status. The parties to any recognised form of marriage were entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage as per article 45(3) of the Constitution.
  8. Before the Marriage Act, a party to a customary marriage did not need to approach the court for divorce. A party who was desirous of divorce had two conclusive but alternate trajectories at their disposal.
    1. securing a divorce by invoking the divorce rites of community under which he customary marriage was contracted; or
    2. in exceptional circumstances, approaching a court of law seeking a divorce decree.
  9. In relation to the first option, within the Akamba community, a wife needed only to return mbui ya ulee (bridal rejection goat) to the parents of the husband, to mark a conclusive divorce, notwithstanding the fact that full dowry may not be returned. The second option was applicable in exceptional circumstances. Some of the notable exceptional circumstances were whenever the desirous party was frustrated or the attempt to divorce under the said rites was rejected or rendered insurmountable or impossible.
  10. After the Marriage Act came into force, the trajectories available for divorce of a customary marriage were reduced from two to only one; a court action as per section 69 of the Act. In respect to customary marriages, the provision marked a fundamental shift from the varied and uncodified divorce grounds based on marriage customary laws of individual communities, to standardized and statute-based grounds that were common to all communities.
  11. The Marriage Act brought a transformative approach to the manner of proving a customary marriage. Before 2014, proof of customary marriage required a petitioner to invoke the principles in Hottensiah Wanjiku Yawe vs. Public Trustee
    1. the onus of proving customary law marriage was generally on the party who claimed;
    2. the standard of proof was the usual one for a civil action (on a balance of probabilities);
    3. evidence as to the formalities required for a customary law marriage must be proved to that standard;
    4. long cohabitation as a man and a wife gave rise to a presumption of marriage in favour of the party asserting it;
    5. only cogent evidence to the contrary could rebut the presumption; and
    6. if specific ceremonies and rituals were not fully accomplished, that did not invalidate such a marriage.
  12. However, in an emphatic paradigm shift, in the advent of the Marriage Act, as per section 59 read with sections 3, 12(e), and 96 (2) & (3) of the Marriage Act, it mattered not whether the customary marriage was contracted before or after the Marriage Act came into force , the petitioner bore the burden of exhibiting either a certificate of marriage or a certified copy of the certificate of marriage or an entry in a register of marriages maintained by the Registrar of Marriages or a certified copy of an entry in a register of marriages maintained by the Registrar of Marriages or an entry in a register of marriages maintained by the proper authority.
  13. Section 3 of the Marriage Act, 2014 provided that a valid marriage of any type was subject to three conditions namely:
    1. a union of the opposite sex
    2. voluntarily; and
  14. Section 59 of the Marriage Act, 2014 restricted the acceptable nature of evidence to prove a marriage contemplated under the Act. Section 96 of the Marriage Act, 2014 on the other hand transited all marriages which were contracted before the Act to the regime under the Act. It required that parties to a marriage contracted under customary law before commencement of the Act, shall apply to the Registrar for registration of their marriage under the Act within three years of the Act coming into force. Section 12(e) then provides for the consequence of failure to register such a marriage which is to render it voidable.
  15. The Marriage Act, 2014, did not define the term voidable as applied in the Act. Voidable meant valid until annulled; a contract capable of being affirmed or rejected at the option of one of the parties, valid act that may be voided rather than an invalid act that maybe ratified. A voidable marriage was also defined to mean a marriage that was initially invalid but that remained in effect unless terminated by a court order. For instance, a marriage was voidable if either party was underage or otherwise legally incompetent, or if one party used fraud, duress, or force to induce the other party to enter the marriage. The legal imperfection in such a marriage could be inquired into only during the lives of both spouses, in a proceeding to obtain a judgment declaring it void. A voidable marriage could be ratified once the impediment to a legal marriage had been removed.
  16. A voidable marriage was also one that would be regarded by every court as valid subsisting marriage until a decree annulling it had been pronounced by a court of competent jurisdiction. A party desirous of approaching the court in circumstances where the marriage was deemed voidable by section 12(e) of the Marriage Act, 2014, must do so by petition for annulment under section 73, as opposed to a petition for dissolution of the marriage under section 69.
  17. Although the customary marriage between the petitioner and the respondent was said to have been contracted in June of 1987 which was before the Marriage Act, 2014 came into force, onus was on both parties to exhibit either a certificate of marriage or a certified copy of the certificate of marriage or an entry in a register of marriages maintained by the Registrar of Marriages or a certified copy of an entry in a register of marriages maintained by the Registrar of Marriages or an entry in a register of marriages maintained by the proper authority, in tandem with section 59 read with sections 3, 12(e), and 96(2), and (3) of the Marriage Act.
  18. Neither the petitioner nor the respondent exhibited the documentary evidence contemplated by section 59 of the Marriage Act. Although the petitioner asserted and the respondent admitted that they were married in accordance with the customary rites of the Akamba community, by dint of section 12(e) of the Marriage Act, the purported marriage was rendered voidable effective August 1, 2020.
  19. Consequently, as the marriage was voidable, both parties were deprived of the right to petition or cross-petition for divorce or dissolution of the purported marriage. It, however, did not bar either party from filing a petition for annulment of the said marriage. Although section 73(2)(a) of the Marriage Act limited the period of presentation of such a petition to one from the date of celebration of the marriage, on October 19, 2022, the provision was declared unconstitutional on account of unreasonably impeding access to justice in SBM & another vs. Attorney General (Constitutional Petition 21 of 2021) [2022] KEHC 13920 (KLR).
  20. Due to failure to meet the test of sections 59 read with sections 3, 12(e), and 96(2), and (3) of the Marriage Act, neither the petitioner nor the respondent had persuaded the court that the subject marriage was neither void nor voidable, as to entitle any of them to petition for divorce.
  21. 21. The net legal effect of section 59 read with sections 3, 12(e), and 96(2), and (3) of the Marriage Act, 2014 was to oust the application of the principles which were enunciated in the Hottensiah case. There was doubt as to whether the Hottensiah principles remain good law for purposes of proof of a customary marriage and that it could be inferred that the tenure of the Hottensiah principles expired on July 31, 2020.
  22. 22. The matter involved a point of law which was public in nature and transcended the circumstances of the parties, so as to have a more general significance, as to make it a matter of general public importance under article 163(4) (b) of the Constitution as construed by the Supreme Court of Kenya. On the wider scale, it could translate that all parties to a customary marriage who had not registered their marriage with effect from August 1, 2020, could only petition for annulment and not dissolution.
  23. Ultimately, article 159(2)(d) of the Constitution provided that justice shall be administered without undue regard to procedural technicalities. While the instant matter was a procedural issue which the court would have wished and proceeded to determine the petition for divorce as if it was presented as a petition for nullification, the Marriage Act barred it from doing so as the grounds for divorce were a world apart from the grounds for nullification. Further, the said grounds for nullification of marriage were completely absent in both the petition and cross-petition presented. Failure to file a petition for nullification, although a procedural matter, could not be properly so be construed as an undue technicality, since the route of choice was dictated by the distinct grounds for divorce and nullification.
  24. Both the petition and cross-petition seeking dissolution of the asserted customary marriage, were incompetent. Subsequently, the question on whether a ground for dissolution of a customary marriage had been established was rendered moot.
  25. In consideration of the circumstances unique to the petition and cross-petition, including but not limited to the fact that it was a family matter, there was good cause to depart from the general proposition of the law that costs followed the event.

Petition and cross petition stuck out, each party to bear their own costs.



Kenya Law
Case Updates Issue 043/23-24
Case Summaries
CIVIL PRACTICE AND PROCEDURE Only institutions authorised to create a mortgage could lawfully exercise the statutory power of sale

Headnote: the main issue was whether a statutory power of sale exercised by an institution not authorized to create mortgages was lawful. The Court held that the defendant sought to create a statutory power of sale which the law did not recognize. The defendant was not a bank. It could not purport to advance any money, take security therefore and exercise the power of a bank yet it was not a bank. There was no evidence to show that the defendant was authorized to create mortgages. To the extent that the defendant sought to sell and actually sold the plaintiff's property in the exercise of a non-existent statutory power of sale, the sale was unlawful.

Njuguna & another v Ragus & another (Civil Suit 389 of 2002 & Civil Case 422 of 2007 (Consolidated)) [2024] KEHC 4188 (KLR) (Commercial and Tax) (30 April 2024) (Judgment)
Neutral citation: [2024] KEHC 4188 (KLR)

High Court at Nairobi
A Mabeya, J

Reported by Robai Nasike Sivikhe

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Civil practice and procedure –institution of suits – res judicata – circumstances where a suit can be considered res judicata – whether the issue regarding the sale of the suit property was res judicata and had already been determined by a court of competent jurisdiction – Civil Procedure Act, section 7
Land Law –mortgages and charges – statutory power of sale – institutions authorized to create mortgages – where an institution that was not a financial institution created a mortgage – whether a statutory power of sale exercised by an institution not authorized to create mortgages was lawful

Brief Facts
The instant judgment was in respect of two suits filed by the plaintiffs against the defendants. The first suit HCC 389 of 2011 which was previously filed as HCCC 1661 of 2002 and the second suit HCC 422 of 2007. The two suits were consolidated and proceeded against Tetra Park Ltd (the defendant) only. The defendant had not only created a mortgage on the property owned by the plaintiff, but they had also purported to exercise their statutory power of sale over the same.
The plaintiffs submitted that as co-owners of the impugned property, one party could not unilaterally deal with the suit property without the consent of the other. That the power of attorney was specific to sell, let and hire or lease out the property only for the benefit of the 2nd plaintiff. That the defendant could not lawfully charge the suit property after the due consideration had passed between the defendant and the principal debtor (Aberdare Creamaries). That the 1st plaintiff was guaranteeing a past debt and no money was to be advanced as stipulated in the mortgage document. That the defendant could not create a legal mortgage as it was not a bank and the defendant was guilty of fraud and misrepresentation. It was contended that the property was sold at an undervalue.
The defendant submitted that the suit was res-judicata as the issue of the sale of the suit property had been settled in finality by consent. That the power of attorney’s validity had not been challenged as it was signed and registered. It was submitted that the guarantee and execution of the mortgage were within the contemplation of the power of attorney.

Issues:

  1. Whether the issue regarding the sale of the suit property was res judicata and had already been determined by a court of competent jurisdiction.
  2. Whether a statutory power of sale exercised by an institution not authorized to create mortgages was lawful. Read More..

Held:

  1. A matter was res-judicata when it was directly and substantially in issue and the issues in the instant suit were substantially in issue in a matter that had been determined. That was encapsulated in section 7 of the Civil Procedure Act, 2010. The respondent had raised the issue of res judicata vide a preliminary objection and the same was not sustained. The Court could not address that issue since a Court of competent jurisdiction determined it. The issued orders had not been set aside and to delve into the same would be akin to sitting on appeal of those orders.
  2. The power of attorney had a general clause where the 1st plaintiff was empowered to execute the usual and customary documents and transact all the 2nd plaintiff’s affairs including the execution of deeds or instruments. However, those powers were restricted to her advantage. The guarantee was not necessary or most advantageous to the 2nd plaintiff. No reasonable lender could rely on that power of attorney to lend out its money. As it turned out, however, no money was lent, money had long been lent and the 1st plaintiff was only guaranteeing their repayment.
  3. The power of attorney did not extend to the guarantee and the mortgage. The guarantee and execution of the mortgage were not covered by the power of attorney. In any event, both the guarantee and the mortgage were never effective.
  4. The Guarantee and the Mortgage were given for no consideration at all. There was no evidence that after the execution by the 1st plaintiff, the defendant gave any assurances to Barclays Bank to advance any monies to Aberdare Creameries. It turned out that the advances had long been made and the documents only came in to act as a trap for the plaintiff’s property. That was a case of past consideration. No contract was effective.
  5. The defendant sought to create a statutory power of sale which the law did not recognize. The defendant was not a bank. It could not purport to advance any money, take security therefore and exercise the power of a bank yet it was not a bank. There was no evidence to show that the defendant was authorized to create mortgages. To the extent that the defendant sought to sell and actually sold the plaintiff's property in the exercise of a non-existent statutory power of sale, the sale was unlawful.
  6. The defendant did not challenge the two valuation reports which demonstrated that the property was sold at half the price of its value. There was no valuation to counter those valuations. The evidence adduced pointed out the fact that the property was sold at greatly an undervalue. The defendant was not justified in selling the disputed property. There was a valuation that was produced but was for 2022. The proper valuation will be as at the time the property was sold when the loss was attached.

Suit allowed.

Orders

  1. The sale of the suit property was unlawful and was at an undervalue.
  2. The defendant was to pay the plaintiffs a sum of Kshs.32,000,000/- plus interest of 12% pa from the date of filing suit until payment in full.
  3. The plaintiffs were awarded the costs of the suit plus interest thereon.
CIVIL PRACTICE AND PROCEDURE

The Kenya Railways Corporation Act had its own limitation clause which could, in appropriate instances, supersede the Limitation of Actions Act

Headnote:The main argument was that the suit filed by the respondents, at the trial court, was time-barred as per the provisions of the Kenya Railways Corporation Act. The court held that the KRC Act had its own limitation clause which could, in appropriate instances, supersede the Limitation of Actions Act. Section 87 of the KRC Act although a procedural section, was a provision of a substantive statute which could not be made inoperative by a procedural statute. However, that was only in relation to its core business. The applicable limitation statute in the instant case was the Limitation of Actions Act which provided for a limitation period of 6 years and not the Kenya Railways Corporation Act which provided a limitation period of 12 months.

Kenya Railways Corporation v Telkom Kenya Limited (Civil Appeal 423 of 2018) [2024] KECA 9 (KLR) (25 January 2024) (Judgment)
Neutral citation: [2024] KECA 9 (KLR)
Court of Appeal at Nairobi
HA Omondi, A Ali-Aroni & JM Mativo, JJA
Reported by Robai Nasike SivikheReported by Robai Nasike Sivikhe
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Civil practice and procedure – the institution of suits – limitation of time – where the limitation of time was provided within the enabling statute of an institution – institution of a suit against the Kenya Railways Corporation, in view of timelines provided by the Kenya Railways Corporation Act – whether the suit was instituted outside the provided statutorily provided limit and was time-barred – which statute, between the Limitation of Actions Act and the Kenya Railways Corporation Act, ought to be used in determining the time limit for instituting the suit? – Kenya Railways Corporation Act, sections 13 (a) and 87 (b); Limitation of Actions Act, sections 4 (1) and 23; Civil Procedure Act, section 3

Brief facts:
The respondent, Telkom Kenya Limited, an operator of landline Public Switched Telephone Network (PSTN) sued the appellant in HCCC No. 621 of 2016 claiming Kshs.271,100,360.92/- provision of Public Switched Telephone Network (PSTN) voice services and data-oriented telecommunication services to the appellant, Kenya Railway Corporation (KRC) for the period from the late 1980s to November 2006. The claim was made up of Kshs.128,458,420.30 for voice-oriented services whereas data services for the same period amounted to Kshs.88,641,940. KRC was duly invoiced for those services. According to the respondent, after several meetings held in an attempt to settle the matter, the appellant accepted liability for the principal sum but in breach of contractual obligation, failed to pay the bills within the stipulated time.
The appellant denied liability, stating that there was no cause of action as the claim was devoid of particulars with regard to the terms of the contract/agreement; lacked precision as to the time the services were supplied; also denied that the respondent supplied both PSTN and Data services for the alleged value or at all; and that in any event, the claim was time-barred under the statute of limitation. Further, the alleged settlement meetings did not have any binding force as they were contrary to the Kenya Railways Corporation Act; nor had the appellant acknowledged the respondent’s claims which were based on computer-generated documents. Upon hearing the matter, the trial court allowed the respondent’s claim with costs. The appellant was aggrieved by the outcome and filed the instant appeal.

Issues:

  1. Whether the suit was instituted outside the provided statutorily provided limit and was time-barred.
  2. Which statute, between the Limitation of Actions Act and the Kenya Railways Corporation Act, ought to be used in determining the time limit for instituting the suit?

Held:

  1. The proviso to section 13 (a) of the Kenya Railways Corporation Act conferred powers on the Kenya Railways Corporation to include business arrangements, construction and acquisition of property while section 87 (b) on the other hand set the timeline within which any action or proceeding can be commenced against the appellant. Section 87 specifically provided for the limitation period applicable for specific actions taken against the appellant concerning duties provided, undertaken or executed by the appellant specifically under the KRC Act which would ordinarily involve contracts for carriage of goods and passengers, contracts for storage of goods and for railway concessions.
  2. A plain interpretation of sections 13 (a) and 87 (b) of the KRC Act shows that there was no express indication of the fact that the supply of telephone network and data services would be termed as one of the powers of the appellant under the Act. Indeed, section 13(2) (k) (ii) indicated that the appellant had the power to enter into agreements with other persons for the performance or provision of any of the services or facilities which could be performed or provided by the corporation, which revolved around communication.
  3. In the ordinary course of business, the appellant performed or provided travel or transport. Communication must not be confused with providing means of sending or receiving information, which was certainly the mandate of the respondent. Therefore, the provision of telephone network services and data services was not a service contemplated to be performed or provided by the appellant in its mandate under the KRC Act. Certainly, the appellant was involved in communication, but not the kind of service involving telephone network and data services which did not correspond to its core mandate.
  4. To argue that the appellant (a goods and passenger transport company) had a mandate with regard to the provision of telephone and data services would be giving a rather outlandish interpretation of the functions of the appellant. Section 3 of the Civil Procedure Act provides that in the absence of any specific provision to the contrary, nothing in the Act shall limit or otherwise affect any special jurisdiction or power confirmed or any special form or procedure prescribed by or under any law for the time being in force. The KRC Act had its own limitation clause which could, in appropriate instances, supersede the Limitation of Actions Act. Section 87 of the KRC Act although a procedural section, was a provision of a substantive statute which could not be made inoperative by a procedural statute. However, that was only in relation to its core business.
  5. The appellant’s reliance on the provisions of section 13(2) (k) of the KRC Act to argue that the provision of PTN and data services by the respondent was one of the powers of the appellant under the KRC Act, hence the limitation period under section 87 would apply had no footing. The trial court did not err either in fact or in law on that limb that section 87 of the KRC Act was inserted by the legislature to protect the very nature of the core business of KRC; that was, the transportation and carriage of both passengers and goods.
  6. The minutes of February 24, 2015, constituted an acknowledgement of the debt and revived the cause of action within the meaning of section 23 of the Limitation of Actions Act. The relevant time began after the appellant acknowledged being indebted to the respondent, and undertook to pay, then failed to make payment, which would put the onset of events within the 6-year limit.
  7. The applicable limitation statute in the instant case was the Limitation of Actions Act which provided for a limitation period of 6 years and not the Kenya Railways Corporation Act which provided a limitation period of 12 months.
  8. The nature of the amount owing was capable of being specifically pleaded and proved, they were damages capable of being assessed with certainty, vide proof bills/invoices which showed the various meter readings, and cost per unit to properly ascertain what was due and owing to the respondent. Out of its own volition, surrounded by a cloud of senior management personnel, the appellant acknowledged owing the sum claimed. The appellant was being rather economical with the truth, taking into consideration that two senior officials, the Director of Finance and the Finance Manager, attended the meetings with the respondent; and entered into an agreement executed by the appellant’s officers. It did not help the appellant's position, that it had already admitted to owing a sum of Kshs.58,519,128.41; and which the trial court could have awarded ab initio on the basis of judgment on admission. Ultimately, no fault or error on the part of the trial court could be detected.

Appeal dismissed.