Elizabeth Atiang v Tersa Adhiambo Shikuku
The bottom line
#The Environment and Land Court dismissed a land buyer's refund claim because she waited nearly 20 years to sue, past Kenya's six-year limit for contract disputes.
What this practically means
#Executive summary
#Key legal issues
#Limitation of contractual claim for refund of purchase price
The claim was time-barred whether the cause of action accrued in 1997 (per acknowledgements) or 1999 (as the Appellant insisted), since the suit was filed in 2018
Section 4(1) of the Limitation of Actions Act bars contract actions after six years. The last instalment was paid in 1997 per the acknowledgements, or at latest 1999 per the Appellant's testimony. Six years elapsed by 2003 or 2005 respectively; the plaint was filed in 2018, well outside the period.
Scope of the appeal
Only the alternative prayer for refund was before the court; prayers (a), (b) and (c) had been struck out as res judicata in a ruling of 19 February 2019 that was never challenged
The trial court's ruling of 19 February 2019 found prayers (a), (b) and (c) res judicata and struck them out, leaving only the refund prayer for hearing. No appeal or review challenged that ruling, so the appeal could only concern the refund claim.
Burden of proof
The burden of proving payment and entitlement to a refund lay on the Appellant under section 107 of the Evidence Act
The Appellant as claimant bore the burden of proving payment of the purchase price and entitlement to a refund. Her testimony and exhibits did not displace the limitation bar, which the court found determinative on the pleadings, evidence and submissions.
Legal principles established
#- Actions founded on contract may not be brought after six years from the date the cause of action accrued
- On a first appeal the court is obliged to re-analyse the evidence and draw its own conclusions
- A suit that is time-barred is incompetent and fit for dismissal or striking out
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the Respondent
- On appeal from
- Chief Magistrate's Court at Kisumu (Environment and Land)
- Kisumu MC EL Case No. 404 of 2018
- Jurisdiction invoked
- First appeal from the trial court in land and environment matters (Environment and Land Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Atiang v Tersa Adhiambo Shikuku", Case Analysis (2026). ELCLA No. E025 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6229/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.