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ELCDismissedNot stated in the judgment (Applicants' application dated 24th March 2015)· [2016] KEELC 399 (KLR)

Embakasi Sweet Waters Welfare Group v Matumaini Ventures Ltd & Another [2016] KEELC 399 (KLR)

Environment and Land Court
2 August 2016
1,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Applicants entered into an agreement for sale on 20th February 2004 with the 1st Respondent for 10 acres of LR No. 12867/13 at Kshs.4,000,000/=, paying the full purchase price through the 2nd Respondent, the registered owner. The Respondents never transferred the property, and in June 2006 the Applicants discovered the 1st Respondent had sold the same property to a third party who registered a caveat. Believing a suit had been filed by their previous advocates, the Applicants only learned in 2015 that no suit had ever been instituted, by which time the limitation period for contract had expired. They applied ex parte, under sections 26, 27 and 28 of the Limitation of Actions Act, for leave to file a suit out of time for recovery of the purchase price. The court held that sections 27 and 28 permit extension only of the tort limitation period in section 4(2), and only for negligence, nuisance or breach of duty claims involving personal injuries; there is no jurisdiction to extend the six-year contract period under section 4(1). Section 26 extends time by operation of law, not by court order. The court declined to follow In Re Solomon M'irura Mathiu, in which the jurisdictional point had not been raised. The application dated 24th March 2015 was dismissed with no order as to costs.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 2
02

The persuasive value of In Re Solomon M'irura Mathiu [2012] eKLR

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Applicants' application dated 24th March 2015 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 4(1)
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 4(2)
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 26
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 27(1)
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 28(1)

Cases cited (1)

  • In Re Solomon M'irura Mathiu
    [2012] eKLR
Jurisdiction invoked
Sections 26, 27 and 28 of the Limitation of Actions Act, Chapter 22 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.