KTK Advocates v National Olympic Committee of Kenya (NOCK) & 3 others (Environment and Land Case E311 of 2025) [2026] KEELC 1076 (KLR)

preliminary objection, that together with the plaintifi, they entered into a contract for the purchase of an ofi-plan ofice space on 3rd of June, 2012. 3. The 1st defendant submitted that it failed to complete the project and sold the property to the 2nd defendant in the year 2019. For this reason, it has been 13 years since the cause of action arose and thus the suit ofiends Section 4(1) of the Limitation of Actions Act. The 1st defendant submitted that limitation is not a mere procedural technicality, as it goes to the root of the court’s authority and relied on the authority in Owner of Motor Vessel Lillian “S” v Caltex Oil (Kenya) Ltd (1989) KLR. 4. The 1st defendant relied on the statutory limitation periods under both the Limitation of Actions Act Cap. 22 and the Public Authorities Limitation Act Cap. 39, and submitted that these laws impose an unequivocal six-year limitation period for actions founded on contract. Further reliance was placed on the cases of:Iga v Makerere University [1972] and EA Macharia & another v Katua & 4 others (Environment & Land Case E205 of 2023) [20241 KEELC 4808 (KLR). 5. It was further submitted that the 2nd to 4th defendants being government institutions, are public authorities as contemplated under the Public Authorities Limitation Act. Further, that Section 3(2) of the Act provides a strict and non-extendable limitation period of twelve months for any action against a public authority for any act, neglect, or default in execution of a written law. In conclusion, the 1st defendant submitted that the delay is inordinate and inexcusable and that the plaintifi slept on their rights for 13 years. 6. The 2nd to 4th defendants filed their written submissions dated 24th October, 2025. While relying on the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969)EA 696, the 2nd to 4th defendants submitted that the substantive relief in the suit is refund of Kshs.4,750,000/= paid to the 1st defendant herein pursuant to an agreement dated 23rd April, 2012 thus is statute barred as having been instituted contrary to the provisions of Section 4(1) of Limitation of Actions Act and Section 3(2) of the Public Authorities Limitation Act, and also that there is no privity of contract between the plaintifi and the 2nd, 3rd and 4th defendants. To buttress on this issue, they relied on the cases of Alba Petroleum Limited v Total Marketing Kenya Limited [2019] eKLR and Bosire Ongera v Royal Media Services [2015] eKLR. 7. On privity of contract, they submitted that it is not in dispute that there was a contract between plaintifi and the1st defendant which the 2nd to 4th defendants were not parties to and prayed that the suit be dismissed with costs. 8. The plaintifi did not file its written submissions. Be that as it may, I have considered the preliminary objection and the written submissions filed by the defendants/ respondents. It is quite evident that the issue for determination is whether the instant suit is statute barred. 9. This suit was instituted by way of plaint dated 26th June, 2025. The plaintifi’s firm of advocates pleaded that by the letter of ofier dated 23rd April, 2012 the 1st defendant ofiered to sell and they agreed to purchase ofice numbers 8.6, 8.7 and 8.8 situated on the 8th fioor of Olympic Plaza on LR 209/12386, upper hill Nairobi, for the price of Kshs.47,500,000/=. 10. The vendor, who is the 1st defendant was to manage and complete the construction of the aforesaid ofices, and in breach of the contract, the 1st defendant failed to complete the project while it was still under their name and transferred the title of the suit property to the 2nd defendant on 29th September, 2020. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1076/eng@2026-02-25 2

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11. Because of the said happenings, the plaintifi averred that they were entitled to a refund of the deposit monies paid to the 1st defendant, which was Ksh.4,750,000/= as at 23rd December, 2023 with interest. 12. The 2nd, 3rd and 4th defendants have filed the instant preliminary objection that the suit is now time barred. A preliminary objection was described in the famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as follows:“ So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 13. Section 4(1)(a) of the Limitation of Actions Act Cap 22 provides that:“ The following actions may not be brought after the end of six years from the date on which the cause of action accrued— a. 14. actions founded on contract;” The contract referred to by the plaintifi began by a letter of ofier dated 23rd of April, 2012 and the agreement for sale dated 3rd June, 2012. The plaintifi did not specify the date when the alleged breach occurred, which essentially constitutes the date the cause of action arose as it was held by Eboso J in the case of Wainaina v Sunrise Synthetics Limited (Environment & Land Case 225 of 2018) [2023] KEELC 21669 (KLR) that:“ On my part, I would add that, a plain reading of both Section 4 and Section 7 of the Limitation of Actions Act clearly points to the fact that the date of accrual of a cause of action is the date when time starts running. Put difierently, limitation period in a claim founded on contract is reckoned from the date when the cause of action accrues; not the date when the parties entered into the contract. Consequently, a party invoking the statute of limitation in a claim founded on contract is obligated to demonstrate to the court the date when the breach occurred and, further, demonstrate to the court that at the time the impugned suit was initiated, the prescribed limitation period had lapsed. The limitation should be reckoned from the date when the alleged breach occurred.” 15. The plaintifi however indicated the date that the 1st defendant changed ownership of the suit property to the 2nd defendant, which was on the 29th of September, 2020, which must have been after the alleged breach occurred. 16. Section 3(2) of the Public Authorities Limitation Act Cap 39 provides that: “ No proceedings founded on contract shall be brought against the government or a local authority after the end of three years from the date on which the cause of action accrued.” 17. The 2nd to 4th defendants herein are all government agencies; therefore the cause of action is long overdue at this point. For this reason, the plaintifi’s claim is statutorily time barred, with no further need to go into the 2nd and 3rd points of preliminary objection. 18. From the above, the 2nd, 3rd and 4th defendants’ notice of preliminary objection dated 15th September, 2025 is upheld and the suit is hereby struck out with no order as to costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1076/eng@2026-02-25 3

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It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 26TH DAY OF FEBRUARY, 2026. HON. MBOGO C.G. JUDGE 26/02/2026. In the presence of: Ms. Benson Agunga - Court assistant Ms. Anyango holding brief for Mr. Kipkorir for the Plaintifi Ms. Kiget holding brief for Arusei for the 1st Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1076/eng@2026-02-25 4

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