A single email. Six years of silence. One unpaid construction certificate.
On July 9, the High Court ruled that a debtor’s written acknowledgment can revive a claim that many believed had expired, potentially reshaping how Kenyan courts interpret old commercial debts.
Justice Benard Murunga overturned a lower court ruling and awarded Tulsi Construction Limited KSh2,781,937 against Kawaken Holdings Limited, holding that an email sent in August 2020 amounted to a clear acknowledgement of an unpaid debt, effectively restarting the legal clock under the Limitation of Actions Act.
The dispute traces its roots to a multimillion-shilling apartment project along Nairobi’s Waiyaki Way.
Tulsi had been contracted to build the development under an agreement worth KSh257.9 million.
After completing part of the works, the contractor received Interim Certificate No. 14, certifying that KSh 2.78 million was due. An invoice followed in March 2014.
The money never came.
For years, the matter lay dormant until July 2020, when Tulsi demanded payment.
Kawaken’s response would ultimately become the centrepiece of the litigation.
“We are writing to confirm that we received your email… The certificate No. 14 was issued by the Architects… Please have patience with us to trace from the Bank the position,” the company wrote.
The Unpaid Certificate
The Magistrate’s Court dismissed Tulsi’s suit in 2024, concluding that the email was merely a plea for patience rather than an admission of liability.
Since contractual claims generally expire after six years, the court found the suit had been filed too late.
The High Court saw it differently.
Justice Murunga said the lower court had isolated a single phrase while ignoring the broader context of the correspondence.
By referring to “the unpaid certificate”, acknowledging that Certificate No. 14 had been issued, and asking for time to trace payment records, Kawaken had unmistakably recognised the existence of the debt, the judge found.
In one of the judgement’s most striking observations, the court remarked: “A debtor who disputes a debt shows his creditor the door; he does not beg his creditor’s patience while he searches the house for a receipt.”
That finding proved decisive.
Written Acknowledgement
Under Sections 23 and 24 of the Limitation of Actions Act, a written acknowledgement revives a liquidated claim by starting a fresh six-year limitation period.
The judge ruled that Kawaken’s email did exactly that, making Tulsi’s September 2020 lawsuit legally competent despite the original debt dating back to 2014.
The court also revisited an earlier procedural battle. In 2021, Kawaken had unsuccessfully sought to strike out the suit as time-barred, a decision later upheld on appeal.
Justice Murunga clarified that those earlier rulings merely postponed the limitation question until trial; they never finally decided it, leaving the issue open for determination after evidence was heard.
Having found the suit valid, the court concluded that the unpaid certificate, invoice and contract were never genuinely disputed.
Kawaken’s own managing director admitted during the trial that the invoice had not been paid.
KSh 2.78 Million Award
Judgement was therefore entered for KSh2.78 million, with interest from September 29, 2020, until payment in full.
However, the court rejected Tulsi’s extra claim of KSh964,530.28 for supposed unpaid withholding tax, stating that the contractor did not provide any tax certificates or records from the Kenya Revenue Authority to support the deduction.
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Beyond the money, the ruling sends a broader message to Kenya’s commercial sector: an informal email may carry consequences far greater than its author intended.
In contract disputes, carefully chosen words can revive liabilities long thought buried by time.
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