Embakasi Sweet Waters Welfare Group v Matumaini Ventures Ltd & Another [2016] KEELC 399 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled it has no power to extend the six-year deadline for contract claims, so buyers must sue promptly or lose their claim entirely.
What this practically means
#Executive summary
#Key legal issues
#Whether the court can grant leave under sections 27 and 28 of the Limitation of Actions Act to file a contract claim out of time
No. Only the tort limitation period in section 4(2) is extendable with leave; section 27 is confined to negligence, nuisance or breach of duty claims with damages for personal injuries, none of which applies to a claim for breach of an agreement for sale of land.
The court set out sections 4(2), 27(1) and 28(1) of the Limitation of Actions Act and observed that section 27(1) removes the section 4(2) defence only where the action is for damages for negligence, nuisance or breach of duty and the damages include personal injuries. The intended suit was for breach of contract for sale of land, governed by the six-year period in section 4(1), which the court has no power to extend. Section 26 operates by operation of law, not by leave of court, and the applicants had not brought themselves within it.
The persuasive value of In Re Solomon M'irura Mathiu [2012] eKLR
The court declined to follow the decision, stating it disagreed with it because the court in that case was not alerted to the absence of power under sections 26 and 28 to extend time for recovery of land.
The Applicants had relied on In Re Solomon M'irura Mathiu to support their application for extension of time. The court expressly declined to agree with that decision, reasoning that the attention of the court in the earlier case had not been drawn to the fact that the court had no power under sections 26 and 28 of the Limitation of Actions Act to extend time for the recovery of land. The decision was therefore distinguished on the basis of an unargued point of jurisdiction.
Legal principles established
#- The limitation period for actions founded on contract under section 4(1) of the Limitation of Actions Act cannot be extended by the court under sections 27 and 28 of the Act; those provisions apply only to tort claims for negligence, nuisance or breach of duty involving personal injuries.
- Section 26 of the Limitation of Actions Act does not confer power on the court to extend time; time under that section is extended by operation of law where its conditions are met.
Court orders
#- 1.The Applicants' application dated 24th March 2015 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Sections 26, 27 and 28 of the Limitation of Actions Act, Chapter 22 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Embakasi Sweet Waters Welfare Group v Matumaini Ventures Ltd & Another [2016] KEELC 399 (KLR)", Case Analysis (2016). Not stated in the judgment (Applicants' application dated 24th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/399/eng@2016-08-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.