Mwangi & another v Kamau & another (Environment and Land Appeal E049 of 2024) [2025] KEELC 6554 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st Respondent complied with the strict conditions in Section 28(2) of the Limitation of Actions Act
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
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.
Whether the magistrate exercised discretion judiciously in granting the exparte extension order
No; the decision rested on an affidavit that failed the statutory test, so the ruling and consequential orders were set aside
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.
Legal principles established
#- 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
#- 1.Appeal dated 4-12-2024 is hereby allowed
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.