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ELCPartially AllowedNakuru CM ELC 517 of 2018 (Appeal)· [2025] KEELC 6301 (KLR)

Githae v Njuguna (Suing as the next of kin and legal representative of Estate of Sammie Seka Barah - Deceased) & 2 others (Environment and Land Appeal 18 of 2024) (Environment and Land) [2025] KEELC 6301 (KLR)

Environment and Land Court
25 September 2025
9,377 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a 21-year-late land claim, confirming the 12-year limit to sue for land recovery is absolute.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Naivasha against the judgment of Chief Magistrate L. A. Arika delivered on 15th February 2022 in Nakuru CM ELC No. 517 of 2018, which had entered judgment for the plaintiff (1st respondent) against the defendants, including the 2nd defendant (appellant), in a claim for recovery of two plots sold under a 1995 sale agreement. The appellant raised eleven grounds, principally that the suit was statute barred; that the value of the plots was unpleaded and unproven special damages; and that the trial magistrate wrongly ordered a joint valuation. The respondent submitted the suit was within time, relying on an ex-parte extension of time granted by the High Court under Section 26 of the Limitation of Actions Act, and that the appellant was bound by acts of his agents. The court, as the first appellate court, re-evaluated the evidence as permitted by Selle v Associated Motor Boat Co. and Paramount Bank. It held that the suit was one for recovery of land governed by the 12-year bar in Section 7 of the Limitation of Actions Act; that Section 9(2) did not assist because no evidence showed the deceased was in possession; that the Section 26 extension granted for a contract claim was inapplicable to the land recovery suit; and that the suit filed some 21 years after the 1995 agreement was statute barred. Following Bosire Ongero and Owners of the Motor Vessel 'Lillian S', the court held the trial court lacked jurisdiction. The appeal was allowed, the trial judgment set aside and substituted with an order dismissing the respondent's suit, with costs of the appeal and the suit to the appellant.

Key legal issues

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01

Limitation of the suit for recovery of land

Holding

The suit, filed over 21 years after the 1995 sale agreement, was statute barred under Section 7 of the Limitation of Actions Act

Reasoning

The founding cause of action was the 1995 sale agreement; the suit to recover land was filed in 2016, about 21 years later. Section 9(2) could not assist because there was no evidence the deceased was in possession of the land. The ex-parte extension of time under Section 26 obtained for a breach of contract claim did not cover a suit to recover land, which is subject to an absolute 12-year bar.

p. 16
02

Jurisdiction of the trial court

Holding

Having found the suit time barred, the trial court lacked jurisdiction and should not have entertained the matter

Reasoning

Relying on Bosire Ongero v Royal Media Services and Owners of the Motor Vessel 'Lillian S', limitation goes to jurisdiction. Once a claim is statute barred, the court has no power to take any further step, and the trial court's judgment was a nullity for want of jurisdiction.

p. 16
03

Applicability of leave granted under Section 26 of the Limitation of Actions Act

Holding

The ex-parte extension of time granted for a contract/fraud claim was not applicable to the subsequent suit to recover land

Reasoning

The Applicant in the misc. application sought to file suit for damages for breach of agreement and fraud, but instead filed a suit to recover land. Given the fundamental distinction between the 12-year absolute bar in Section 7 and the Section 26 extensions, the leave did not validate the land recovery suit.

p. 14

Legal principles established

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  • A suit to recover land cannot be brought after 12 years from when the right of action accrued, and Section 26 extension on grounds of fraud or mistake does not apply to land recovery claims after the 12-year period
  • Where a claim is statute barred, the court has no jurisdiction to entertain it
  • Under Section 9(2) of the Limitation of Actions Act, the right of action to recover a deceased person's land accrues on the date of death only if the deceased was in possession of the land

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the trial court set aside and substituted with an order of dismissal of the Plaintiff's case in the trial court
  3. 3.Appellant to have costs of the Appeal and of the suit in the lower court

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9(2)
  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 26 and 26(c)
  • Civil Procedure ActSection 78
  • Evidence ActSections 107, 108 and 109

Cases cited (17)

  • Selle vs Associated Motor Boat Company Ltd and Others
    [1968] EA 1
  • Antony Francis Warehaun t/a Warehaun & 2 others v Kenya Post Office Saving Bank
    [2004] eKLR
  • North Kisii Central Farmers Limited v Jeremiah Mayaka Ombui & 4 Others
    [2014] eKLR
  • Elizabeth Kamene Ndolo v George Matata Ndolo
    (1996) eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Desidery Tyson Otieno Malidi
    CACA No. 39 & 40 of 2016
  • Pius Kimaiyo Langat v The Co-Operative Bank of Kenya Limited
    Nairobi CACA No. 48 of 2015
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] KECA 532 (KLR)
  • Gathoni v Kenya Co-operative Creameries Ltd
    [1982] eKLR 104
  • Margaret Wairimu Mgugu v Karura Investment Limited & 4 Others
    [2019] eKLR
  • Magunga General Stores v Pepco Distributors Limited
    (1987) 2 KAR 89
  • Jebrock Sugarcane Growers Co. Limited v Jackson Chege Busi
    Civil Appeal No. 10 of 1991 (Kisumu) (unreported)
  • Karanja v Phoenix of EA Assurance Co Ltd
    [1991] eKLR
  • Sylvia Wanjiru Gathendu vs Lilian Waithera Mwai & 4 Others
    ELC Misc No. 68 of 2019
  • Paramount Bank Limited vs First National Bank Limited & 2 Others
    (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR)
  • Mukuru Munge vs Florence Shingi Mwawana & 2 others
    [2016] eKLR
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
On appeal from
Chief Magistrate's Court at Nakuru
CM ELC No. 517 of 2018
Jurisdiction invoked
First appeal under section 78 of the Civil Procedure Act

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, "Githae v Njuguna (Suing as the next of kin and legal representative of Estate of Sammie Seka Barah - Deceased) & 2 others (Environment and Land Appeal 18 of 2024)  (Environment and Land) [2025] KEELC 6301 (KLR)", Case Analysis (2025). Nakuru CM ELC 517 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6301/eng@2025-09-25

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