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ELCDismissedEnvironment and Land Miscellaneous Application 2 of 2023· [2023] KEELC 16612 (KLR)

Kinuthia & another v Wanyiri

Environment and Land Court
29 March 2023
YAY. M. Angima
1,556 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it cannot extend the six-year deadline for suing over broken contracts, so act before time runs out.

What this practically means

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Executive summary

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The Applicants sought, by chamber summons dated 19 December 2022, an extension of time and leave to file suit against the Respondent out of time. They alleged that in 2013 the Respondent agreed to sell them 3 acres to be excised from Title No. Nyandarua/Ndaragwa/522, received Kshs. 915,000, and failed to transfer the land. The Respondent was convicted of obtaining money by false pretences in Nyahururu CM Criminal Case No. 2904 of 2015. The Applicants wished to sue for specific performance or recovery of the purchase price but faced the six-year bar in section 4(1) of the Limitation of Actions Act. They attributed the delay to illiteracy, poverty, Covid-19 and a mistaken belief that they needed typed criminal proceedings before suing. The application was initially filed in the High Court and transferred to the ELC on 9 March 2023. Angima J held that the application could only be considered under sections 27 and 28 of the LAA, which confine extension of time to tort claims in negligence, nuisance or breach of duty; there is no jurisdiction to extend time for contract claims. Following Mary Osundwa v Nzoia Sugar and Divecon v Samani, and declining to follow conflicting High Court decisions, the court found the Applicants had not brought themselves within Part III of the LAA and had shown no plausible reasons for the delay: ignorance of the law, penury and Covid-19 (which post-dated the lapse of the limitation period) were all rejected. The chamber summons was dismissed with no order as to costs.

Key legal issues

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01

Jurisdiction to extend limitation period for contract claims

Holding

The court lacks jurisdiction to extend time for filing a suit founded on contract; sections 27 and 28 of the LAA apply only to tort claims

Reasoning

Section 4(1) of the LAA bars contract actions after six years. Part III extension provisions do not apply to contract. Relying on Mary Osundwa v Nzoia Sugar and Divecon v Samani, the court held extension is confined to tort claims in negligence, nuisance or breach of duty, and declined to follow conflicting High Court decisions, being bound by Court of Appeal authority.

02

Plausibility of reasons for delay

Holding

Ignorance of the law, poverty and Covid-19 did not justify the delay since the limitation period expired in 2020, before the pandemic reached Kenya

Reasoning

The Applicants pleaded illiteracy, poverty and Covid-19 disruption. The court found ignorance of law is not ignorance of material facts, penury is no excuse as the LAA binds rich and poor alike, and the first Kenyan Covid-19 case (March 2020) post-dated the lapse of the limitation period following the 2014 completion date.

Legal principles established

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  • There is no provision under the Limitation of Actions Act for extension of time in claims founded on contract; extension under sections 27 and 28 applies only to tort claims in negligence, nuisance or breach of duty
  • Ignorance of the law and inability to raise legal fees are not good reasons for extension of time under the Limitation of Actions Act

Court orders

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  1. 1.The Applicants' chamber summons dated 19.12.2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A
  • Civil Procedure RulesOrder 37 rule 2
  • Limitation of Actions Act (Cap. 22)Sections 4(1), 20, 21, 27, 28, Part III
  • Constitution of Kenya, 2010Article 159
  • Penal Code (Cap. 63)Section 313

Cases cited (5)

  • Mary Osundwa v Nzoia Sugar Company Ltd
    [2002] eKLR

    Extension of time under LAA confined to tort claims in negligence, nuisance or breach of duty

  • Divecon Limited v Samani
    [1995-1998] EA 48

    No court may entertain a contract action filed six years after accrual or extend such time

  • Nation Media Group Limited & 2 Others v Margaret Kamene Wambua
    [2021] eKLR

    Held court retained discretion to extend time despite LAA - not followed

  • Royal Media Services Ltd v Valentine Mugure Maina & Another
    [2019] eKLR

    Held court retained discretion to extend time despite LAA - not followed

  • County Executive of Kisumu v County Government of Kisumu and 8 Others
    [2017] eKLR

    Distinguished - concerned extension of time to appeal, not extension under the LAA

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Order 37 rule 2 and Section 4(1)(a) of the Limitation of Actions Act, Article 159 of the Constitution

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, "Kinuthia & another v Wanyiri", Case Analysis (2023). Environment and Land Miscellaneous Application 2 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16612/eng@2023-03-29

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