Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedApplication dated 11th April, 2025 (number not stated in judgment)· [2025] KEELC 6862 (KLR)

Kamau & 4 others v Njuguna (Enviromental and Land Originating Summons E008 of 2025) [2025] KEELC 6862 (KLR)

Environment and Land Court
15 August 2025
2,936 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused a church permission to sue late over disputed land, but confirmed it can file afresh with the right trustees.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Nakuru (Ombwayo J) determined a Notice of Motion dated 11th April 2025 by which the Applicant, a church society acting through trustee Peter Macharia Sigaka, sought leave to file suit out of time against the Respondents. The dispute concerns two properties, Mau Summit/Molo Block/1/181 and 1/182, allegedly acquired for the church by the 1st Respondent but registered in his name. Prior litigation commenced in 2004 (Nakuru Civil Suit No. 247 of 2004, later transferred as Nakuru ELC No. 129 of 2019) was struck out on 23rd September 2024 for want of locus standi, as the plaintiffs were not the rightful trustees; a fresh suit (ELCLC/E072/2024) was also struck out on 19th March 2025 as time barred. The Respondent opposed, arguing the court lacked jurisdiction under Section 27 of the Limitation of Actions Act to extend time in land ownership claims and that the claim, accrual of which dated back decades, fell foul of Section 7. The court, applying Section 26 of the Limitation of Actions Act and the authority in Nzoia Sugar Company Ltd v Kenya Ports Authority, held that fraud-based provisions do not require an application for leave and that Section 27 leave is confined to negligence, nuisance and breach of duty claims. Finding that time stopped running in 2004 upon discovery of the alleged fraud, the court held it had no power to grant an extension, dismissed the application with costs, and clarified that the Applicants remain at liberty to file suit with their correct trustees for determination on merit.

Key legal issues

#
01

Whether the court has jurisdiction to grant leave to file suit out of time in a land ownership claim

Holding

The court has no power to grant extension of time for the intended suit; the application was dismissed

Reasoning

The court held that Section 26 of the Limitation of Actions Act, on fraud, does not require an application for leave but allows suit to be filed notwithstanding expiry of limitation where the action falls within it. Section 27 leave is limited to actions for damages for negligence, nuisance or breach of duty, not land ownership claims. Since time stopped running in 2004 upon discovery of alleged fraud, and the Applicants may file with correct trustees, extension of time was unavailable.

p. 5
02

When limitation begins to run in fraud-based claims

Holding

Time stopped running in 2004 when the Plaintiffs discovered the alleged fraud

Reasoning

Applying Section 26 of the Limitation of Actions Act and Margaret Wairimu Magugu v Karura Investment Limited, the court found that limitation in a fraud-based action does not begin to run until the plaintiff discovers the fraud. As the Plaintiffs pleaded discovery of fraud in 2004 prompting the 2004 suit, time was taken to have stopped running then.

p. 5
03

Whether the Applicant's prior suit failing for want of locus standi justified an extension application

Holding

The proper course was to file suit with the correct trustees, not to seek extension of time

Reasoning

The court noted the earlier suit (Nakuru Civil Suit No. 247 of 2004, later ELC 129 of 2019) was struck out for want of locus because the plaintiffs were not the rightful trustees, the 3rd plaintiff having ceased to be a trustee in September 2022 before the 2024 judgment. The court clarified the Applicants remain free to file suit with the correct trustees for determination on merit.

p. 5

Legal principles established

#
  • Where an action is based on fraud, limitation does not begin to run until the plaintiff discovers the fraud or could with reasonable diligence have discovered it (Section 26, Limitation of Actions Act)
  • Sections 22 and 26 of the Limitation of Actions Act do not envisage an application for leave to extend time; they empower a party to file suit despite expiry of the limitation period where the action falls within their scope
  • A society can only sue through its officials or trustees, and must institute suit with its rightful trustees

Court orders

#
  1. 1.The application dated 11th April, 2025 is dismissed with costs
  2. 2.The Applicants are at liberty to file the case with its correct trustees and have the same heard and determined on merit

Authorities

#

Legislation

  • Constitution of KenyaArticles 40, 48 and 51
  • Civil Procedure ActSections 1A(1)(2), 95
  • Limitation of Actions ActSections 7, 22, 26, 27, 28
  • Civil Procedure RulesOrder 40

Cases cited (16)

  • Royal Media Services Ltd v Valentine Mugure Maina & Another
    (2019) eKLR
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Microsoft Corporation v Mitsumi Computer Garage Ltd & Another
    [2001] EA 460
  • Raila Odinga & 3 Others v IEBC & 2 Others
    [2013] eKLR
  • Peter Ngugi Kibiri v Esther Wangari
    [2015] eKLR
  • Ruth Wambui Nganga v Ngong Butchers Co-Operative Limited
    ELC Misc. No. 762 of 2015
  • Mary Osundwa v Nzoia Sugar Company Limited
    [2002] eKLR
  • Willis Onditi Odhiambo v Gateway Insurance Co., Ltd
    [2014] eKLR
  • Juma & 5 others v Mada Holdings t/a Baobab Sea Lodge Kilifi Limited
    Civil Appeal E034 of 2022
  • Donald Osewe Oluoch v Kenya Airways Limited
    Civil Appeal No. 247 of 2014
  • Cresta Investments Limited v Gulf African Bank Limited & another
    [2020] eKLR
  • Margaret Wairimu Magugu v Karura Investment Limited & 4 others
    [2019] KECA 653 (KLR)
  • Amos Nyaga Kangangi v Murangi Gakinya & others
    [2017] KEELC 3260 (KLR)
  • Nzoia Sugar Company Ltd v Kenya Ports Authority
    [1990] KEHC 79 (KLR)
  • Kenya Ports Authority v Timberland (K) Ltd
    [2017] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction; application invoking Section 95 of the Civil Procedure Act and Sections 26 and 27 of the Limitation of Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kamau & 4 others v Njuguna (Enviromental and Land Originating Summons E008 of 2025) [2025] KEELC 6862 (KLR)", Case Analysis (2025). Application dated 11th April, 2025 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6862/eng@2025-10-09

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