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ELCDismissedNot stated in the judgment (Originating Summons filed 25th February 2015; Notice of Motion dated 24th February 2015)· [2021] KEELC 136 (KLR)

Daniel Kirumbi Njoroge v Christopher Kangethe Kigwe [2021] KEELC 136 (KLR)

Environment and Land Court
16 December 2021
SOS. Okong'o
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it cannot extend limitation deadlines for land sale or contract claims—miss the deadline and the claim dies.

What this practically means

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Executive summary

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The Plaintiff entered an agreement on 19th November 1998 with the Defendant to purchase one acre of L.R No. 10823/5 for Kshs. 95,000/-. He averred he paid the full purchase price but the Defendant never subdivided or transferred the land, blaming delays at the Lands Office. In 2015, long after the limitation periods had run, the Plaintiff filed an Originating Summons together with a Notice of Motion dated 24th February 2015 seeking extension of time for filing the Originating Summons. The Defendant opposed, arguing the property belonged to Kigwe Limited, the sale was void for want of Land Control Board consent, and that time can only be extended for tortious claims under section 27 of the Limitation of Actions Act, not contract claims; the application was also attacked as defective for failing to cite any enabling provision. The Applicant died on 4th March 2019 and his widow argued the application, attributing the delay to the Defendant's assurances, personal hardships and frustration by his advocate. The court framed the sole question as whether it had jurisdiction to extend time under section 4 for contract claims or section 7 for recovery of land. Relying on Willis Onditi Odhiambo v Gateway Insurance Co Ltd, the court held that extension is available only for tort claims of negligence, nuisance or breach of duty involving personal injuries, and that it had no jurisdiction to grant leave for enforcement of an agreement for sale of land. The application was dismissed, the Originating Summons struck out, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the court may extend time to enforce an agreement for sale of land after expiry of the limitation period

Holding

No; section 27 of the Limitation of Actions Act confers no such power in respect of contract or land-recovery claims

Reasoning

Section 27 allows extension only where the action is founded on tort (negligence, nuisance or breach of duty) and damages include personal injuries, with leave under section 28. The Applicant's claim is for breach of an agreement for sale of land, a contract claim falling under section 4 (6 years) rather than section 27. No other statutory provision was cited conferring power to extend time under sections 4 or 7, so the court lacked jurisdiction to grant the order sought.

p. 3
02

Whether the Notice of Motion was procedurally sound

Holding

The application was not brought under any provision of law and was defective, but the decisive ground for dismissal was want of jurisdiction

Reasoning

The Respondent objected that the application failed to cite the enabling statutory provisions and should have been by Originating Summons. The court agreed the application cited no provisions of law or authority granting power to extend time under sections 4 or 7, and in the absence of any such provision found the application without merit.

p. 2

Legal principles established

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  • The limitation period under the Limitation of Actions Act can only be extended in respect of actions for negligence, nuisance or breach of duty where the damages claimed are in respect of personal injuries; there is no jurisdiction to extend time for contract or land-recovery claims.

Court orders

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  1. 1.The application dated 24th February 2015 is dismissed
  2. 2.The Originating Summons in respect of which extension of time was sought is struck out
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Limitation of Actions Act, Cap. 22 Laws of KenyaSection 7
  • Limitation of Actions Act, Cap. 22 Laws of KenyaSection 4(1) and (2)
  • Limitation of Actions Act, Cap. 22 Laws of KenyaSection 27(1)
  • Limitation of Actions Act, Cap. 22 Laws of KenyaSection 28(1)
  • Civil Procedure RulesOrder 37 Rule 6(1) and (2)

Cases cited (2)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Willis Onditi Odhiambo v Gateway Insurance Co Ltd
    [2014] eKLR
Jurisdiction invoked
Sections 27 and 28 of the Limitation of Actions Act (Cap. 22) and Order 37 Rule 6 of the Civil Procedure Rules - considered and found not to confer jurisdiction over contract/land-recovery claims

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, "Daniel Kirumbi Njoroge v Christopher Kangethe Kigwe [2021] KEELC 136 (KLR)", Case Analysis (2021). Not stated in the judgment (Originating Summons filed 25th February 2015; Notice of Motion dated 24th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/136/eng@2021-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.