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ELCAllowedMurang'a CMMISC Application Case No. E028/2024 (appeal dated 4-12-2024)· [2025] KEELC 6554 (KLR)

Mwangi & another v Kamau & another (Environment and Land Appeal E049 of 2024) [2025] KEELC 6554 (KLR)

High Court of Kenya
29 September 2025
845 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The High Court blocked a landowner's attempt to sue over a decades-old land transfer because she gave vague reasons for the long delay in filing.

What this practically means

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Executive summary

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The Appellants appealed against an ex parte order of the learned magistrate in Murang'a CMMISC Application Case No. E028/2024 granting the 1st Respondent leave to institute a land suit out of time. The 1st Respondent's proposed suit, dated 25-6-2024, sought to recover land she alleged was fraudulently and illegally transferred to the 1st Appellant by the 2nd Appellant. She alleged she discovered the fraud on 10-12-2019 but filed the extension application only in mid-2024. The High Court, M.N. Gicheru J, identified four issues centring on whether sufficient and legally justifiable grounds existed for extension of time under the Limitation of Actions Act, Cap 22, whether the trial court misapplied the Act, whether prejudice would be occasioned by allowing a suit more than two decades after the cause of action, and whether the discretion was judiciously exercised. The court held that the decisive question was compliance with the strict conditions of Section 28(2), which requires that, on evidence adduced by the plaintiff, it appear the action if brought forthwith would lie on like evidence. Paragraph 10 of the 1st Respondent's affidavit was found to be general, vague and lacking a full explanation for the delay, contrary to the principle in Y.H. Wholesalers Ltd v Kenya Revenue Authority, which the court adopted as good law. Allowing the appeal, the court set aside the ruling of 6-11-2024, all consequential orders and the application dated 25-6-2024, and awarded costs of the appeal and the lower court to the Appellants.

Key legal issues

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01

Whether the 1st Respondent complied with the strict conditions in Section 28(2) of the Limitation of Actions Act

Holding

She did not; her supporting affidavit failed to give a full explanation for the delay, so leave to file suit out of time was wrongly granted

Reasoning

Section 28(2) permits leave only if, on evidence adduced by the plaintiff, it appears the action if brought forthwith would succeed on like evidence. Paragraph 10 of the 1st Respondent's affidavit was general and vague, alleging logistical challenges without stating when they occurred or how they hindered commencement of the action. The court adopted Y.H. Wholesalers, which requires a full explanation for the delay, and found the statutory threshold unmet.

p. 2
02

Whether the magistrate exercised discretion judiciously in granting the exparte extension order

Holding

No; the decision rested on an affidavit that failed the statutory test, so the ruling and consequential orders were set aside

Reasoning

Because the material placed before the trial court did not satisfy the strict conditions of Section 28(2), the discretion to grant leave was exercised on an improper factual foundation. The magistrate also relied on VCB v Mukoome Agencies, an authority on fraud going to trial rather than on the criteria for extension of time, compounding the error in the appeal.

p. 3

Legal principles established

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  • An applicant for leave under section 28(2) of the Limitation of Actions Act must give a full explanation for the delay on evidence adduced

Court orders

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  1. 1.Appeal dated 4-12-2024 is hereby allowed
  2. 2.The ruling dated 6-11-2024 together with all consequential orders issued in Murang'a CMMISC Case No. E028/24 are set aside and the application dated 25-6-2024 is set aside
  3. 3.The costs of this appeal and those in the lower court to the Appellants
On appeal from
Magistrates' Court, Murang'a
Murang'a CMMISC Case No. E028/24
Jurisdiction invoked
First appeal against the ruling of the learned magistrate in Murang'a CMMISC Application Case No. E028/2024

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, "Mwangi & another v Kamau & another (Environment and Land Appeal E049 of 2024) [2025] KEELC 6554 (KLR)", Case Analysis (2025). Murang'a CMMISC Application Case No. E028/2024 (appeal dated 4-12-2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6554/eng@2025-09-29

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