Kamau v Kitana & 2 others (Environment and Land Appeal E006 of 2023) [2025] KEELC 8456 (KLR)
The bottom line
#A Kenyan court confirmed you can sue to recover land more than 12 years later if fraud was involved and you recently discovered it—no special court permission needed first.
What this practically means
#Executive summary
#Key legal issues
#Whether a plaintiff invoking Section 26 of the Limitation of Actions Act (fraud/mistake) must first obtain leave to file suit out of time
No leave or formal application is required; the section empowers a party to file suit despite expiry of the limitation period, and the court may disregard the limitation period if the claim falls within Section 26.
The court read Sections 7 and 26 of the Limitation of Actions Act together with precedent (Nzoia Sugar) and held that Sections 22 and 26 do not envisage an application for leave. Since the appellant pleaded fraud with particulars and asserted discovery in January 2022, filing suit in June 2022, the suit was competently before the trial court and the trial court had jurisdiction.
Whether the appellant pleaded fraud with particulars as required to invoke Section 26
Yes; paragraph 8 of the plaint alleged fraud and mistake with particulars under paragraphs 8(a)–8(c).
The first respondent argued that fraud had not been pleaded, but the court, on examining the plaint, found that the appellant alleged fraud and mistake in paragraph 8 and particularised them in 8(a)–8(c). The appellant also pleaded discovery of the fraud in January 2022, bringing the claim within the delayed-discovery exception.
Whether a claim to recover land filed outside 12 years can proceed where fraud is alleged
Yes; where fraud is concealed, the limitation clock runs from discovery or when the plaintiff could with reasonable diligence have discovered the fraud.
Section 7 bars recovery of land after 12 years, but Section 26 provides that where the action is based on fraud, concealment of the right of action by fraud, or mistake, limitation does not begin until discovery or constructive discovery. The court adopted precedent that land can be recovered even after 12 years where fraud is involved.
Legal principles established
#- Where a claimant pleads fraud or mistake not known to him, time does not begin to run until discovery, and no formal application for leave to file suit out of time under Section 26 of the Limitation of Actions Act is required before filing such a suit.
Court orders
#- 1.Appeal allowed with costs to the appellant
- 2.Ruling of the trial court delivered on 26/01/2023 set aside
- 3.Ruling substituted with an order dismissing the preliminary objection dated 29/06/2022, with costs, costs to abide the outcome of the suit
- On appeal from
- Magistrates' Court (trial court at Machakos)
- Suit over land parcel Machakos Kiandani/241, plaint dated 8/06/2022
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Kitana & 2 others (Environment and Land Appeal E006 of 2023) [2025] KEELC 8456 (KLR)", Case Analysis (2025). Machakos ELC Appeal dated 20/02/2023 (filed 21/02/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8456/eng@2025-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.