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Case Brief · caselaw.co.ke
ELCDismissedELCLA No. E025 of 2024· [2026] KEELC 6229 (KLR)

Elizabeth Atiang v Tersa Adhiambo Shikuku

Environment and Land Court
1 October 2026
1,795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisumu against the judgment of Hon. F. Rashid (PM) in Kisumu MC EL Case No. 404 of 2018, which dismissed the Appellant's suit as statute-barred. The underlying suit, brought by the Appellant as next friend of her incapacitated husband, the original plaintiff, sought a declaration of ownership of KISUMU/CHIGA/231, an order to subdivide and transfer, a permanent injunction, and alternatively a refund of the purchase price with interest, based on a 1992 sale agreement. By a ruling of 19 February 2019, the trial court struck out prayers (a), (b) and (c) as res judicata, leaving only the refund prayer for hearing; that ruling was never challenged. The trial court dismissed the refund claim as time-barred. On appeal, Asati J reaffirmed the duty of a first appellate court to re-analyse the evidence, and held that under section 4(1) of the Limitation of Actions Act a contract action must be brought within six years of accrual. Whether the cause of action accrued in 1997 (per the payment acknowledgements) or 1999 (as the Appellant insisted), the 2018 suit was hopelessly out of time. Relying on Gathoni v KCC and Rawal v Rawal, the court found no error in the trial court's decision, dismissed the appeal, and awarded costs of the appeal to the Respondent.

Key legal issues

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01

Limitation of contractual claim for refund of purchase price

Holding

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

Reasoning

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.

p. 9
02

Scope of the appeal

Holding

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

Reasoning

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.

p. 6
03

Burden of proof

Holding

The burden of proving payment and entitlement to a refund lay on the Appellant under section 107 of the Evidence Act

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 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

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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, "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.