Christopher Kibitok Koech v Stephano Kipkemboi Arap Sawe

under section 4(1) of the Limitation of Actions Act Cap. 22. iii. THAT the learned magistrate erred in law and fact in failing to find that the respondent had no proprietary interest in the land and was not seeking any relief as against the appellant’s title thus it would be acting in vain to grant an order when the respondent was not in occupation of the land. 3. The Appellant thus sought the following Orders: - a. The appeal be allowed. b. The ruling and order of the trial court be set aside and substituted thereof with a finding dismissing the respondent’s application for interlocutory injunction. c. Costs of the application and the present appeal be awarded to the appellant. 4. A brief background to bring the Appeal into perspective is that the respondent herein (plaintiff in the trial court) instituted the suit against the appellant herein vide a Plaint dated 25.03.2021, seeking the following orders:a. A permanent injunction restraining the defendant herein whether acting in person, through their officers, agents, assigns, employees or whosoever from arbitrarily, unilaterally and without a color of right from accessing all that parcel of land known as ELCA Case No. E008 Of 2022 Judgment Page 2

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NDALAT SETTLEMENT SCHEME PLOT NO. 513 measuring 2 acres, the subject property herein. b. Costs of the suit. c. Any other or further relief the Honourable Court may deem fit to grant in the circumstances. 5. Concurrently with the Plaint, the respondent herein also filed a Notice of Motion Application dated 25.03.2021 and Amended on 27.04.2021 seeking the following orders: 1. THAT this Application be certified urgent and be heard ex-parte in the first instance and service thereof be dispensed with. 2. THAT pending the hearing and determination of this Application; this honourable court be pleased to issue an order of interim injunction restraining the respondent herein whether acting in person or through his agents, employees, servants or whosoever from accessing and/or interfering with the Applicant’s ownership and/or usage of all that parcel of land known as UASIN GISHU/NDALAT/84 FORMALLY NDALAT SETTLEMENT SCHEME PLOT NO. 513 measuring 2 Acres. 3. THAT pending the hearing and determination of this suit; this honourable court be pleased to issue an order of interim injunction restraining the respondent herein whether acting in person or through his agents, employees, servants or whosoever from accessing and/or interfering with ELCA Case No. E008 Of 2022 Judgment Page 3

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the Applicant’s ownership and/or usage of all that parcel of land known as UASIN GISHU/NDALAT/84 formally NDALAT SETTLEMENT SCHEME PLOT NO. 513 measuring 2 Acres. 4. THAT this honourable court be pleased to issue an order of Police Assistance through Officer Commanding Station (OCS), Turbo Police Station, to ensure compliance with this honourable court’s orders and provide security. 5. THAT the costs of this Application be provided for. 6. In summary, the facts and grounds in the said application are that vide an agreement for sale dated 23.01.1990, the respondent herein purchased the parcel of land known as UASIN GISHU/NDALAT/84 FORMALLY NDALAT SETTLEMENT SCHEME PLOT NO. 513 measuring 2 Acres (hereinafter referred to as the suit property) from the appellant herein at a consideration price of Kshs. 46,000/=. 7. That the agreed purchase price was fully paid in four installments as follows; Kshs. 1,000/= paid on 23.01.1990, Kshs. 15,000/= paid on 08.02.1990, Kshs. 15,050/= paid on 02.02.1990 and Kshs. 14,950/= paid on 19.02.1990. 8. He did further aver that upon final payment of the agreed purchase price on 19.02.1990, he took possession of the suit property and constructed a house which was occupied by his agents. That he had been enjoying a peaceful and quiet ELCA Case No. E008 Of 2022 Judgment Page 4

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possession until sometimes in February, 2021 when the appellant herein forcefully entered into the suit property, destroyed the house on the parcel and ploughed the land ready for planting hence the application seeking interim injunction. 9. The appellant herein filed a Memorandum of Appearance dated 30.03.2021 and a Statement of Defence dated 30.03.2021 in response to the respondent’s suit whereupon he sought the dismissal of the suit with costs and interest. The appellant herein also filed a Replying Affidavit dated 30.03.2021 in response to the respondent’s application for temporary injunction. 10. In the Replying Affidavit, the applicant herein deponed that he was the sole absolute proprietor of the parcel of land known as UASIN GISHU/NDALAT/84 measuring 7.8Acres, having been registered on 01.02.1996 and the title thereto duly issued. 11. It was the appellant’s claim that no rights could accrue under the agreement for sale entered into in 1990 as the same was time barred by dint of section 4(1) of the Limitation of Actions Act and that the court therefore had no jurisdiction to entertain the matter. 12. It was further his claim that having acquired proprietary interests in the suit land vide his registration as the lawful and legal proprietor of the land on 01.02.1996, he could not enter into any dealings prior to his registration. In addition, that the failure ELCA Case No. E008 Of 2022 Judgment Page 5

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to obtain the Land Control Board Consent voided the agreement allegedly entered into on 23.02.1990. 13. The appellant herein did further contend that the respondent herein was not in possession and had not been in occupation of the suit property. In the end, the appellant herein maintained that the respondent was not entitled to the orders of temporary injunction sought and urged the court to dismiss the application with costs. 14. The application dated 25.03.2021 and amended on 27.04.2021 was heard and determined vide the ruling of Hon. L.P. Kasaan – Chief Magistrate (as he then was) issued on 21.01.2022 and the subsequent order dated 21.03.2022 and whose effect was to issue an order of temporary injunction, restraining the appellant, his agents, servants from encroaching, fencing, destroying structures or interfering with respondent’s quiet possession pending the hearing and determination of the main suit hence the instant appeal. 15. On 08.10.2025, this court admitted the appeal for hearing and thereafter issued directions on the disposal of the appeal by way of written submissions. The Appellant filed his submissions dated 23.01.2026 together with authorities while the Respondent filed his submissions dated 12.02.2026 together with authorities which I have read, considered and summarized as hereunder. ELCA Case No. E008 Of 2022 Judgment Page 6

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Appellant’s Submissions: 16. The appellant herein submitted on two main issues; whether the respondent proved the essential elements necessary for the grant of an order of temporary injunction to the required standard and whether the respondent’s suit was barred by dint of section 4(1) of the Limitation of Actions Act. 17. On the first issue, the appellant outlined the necessary elements and/or tenets to be proved for the grant of an order of temporary injunction as outlined in the celebrated case of Giella vs Cassman Brown Company Limited (1973) E.A. 358. 18. It was the appellant’s submission that the respondent did not establish the existence of a prima facie case for the reason that the sale transaction entered into vide the Agreement for Sale dated 23.01.1990 was voided on account of failure to obtain the requisite LCB consent to sale, subdivide and transfer, within the timelines provided in the Land Control Act. 19. He further submitted that owing to his registration as the lawful proprietor of the suit land on 01.02.1996, he could not therefore transfer any proprietary interests over the suit land or any portion thereof prior to his registration as the owner on 01.02.1996. 20. In addition, it was his contention that the respondent was not in possession and had never been in occupation of the suit ELCA Case No. E008 Of 2022 Judgment Page 7

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property hence the interim orders of temporary injunction ought not to have been granted. 21. On the second element of irreparable loss, counsel for the appellant submitted that no loss would be suffered by the respondent since he was not in occupation of the suit property. 22. It was his submission that by failing to prove the first two elements, the balance of convenience lied in his favor in not granting the orders of temporary injunction sought as the same would be prejudicial to him as the rightful owner. 23. At the end of the first issue, the appellant urged the court to be guided by the decision in the case of Nguruman Limited vs Jan Bonde Nielsen & 2 Others (2014) eKLR. 24. On the second issue, the appellant submitted that the Agreement for Sale dated 23.01.1990 was contractual in nature and any action founded upon it ought to have been filed within 6 years of entering into the said Agreement, that is on or before the year 1996. 25. That therefore, at the time of filing the suit in the subordinate court in the year 2021/2022, the same was time barred and the trial magistrate ought not to have entertained the same by dint of section 4(1) of the Limitation of Actions Act. 26. To buttress the said point, counsel for the appellant relied on the decision in Iga vs Makerere University [1972] EA. ELCA Case No. E008 Of 2022 Judgment Page 8

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27. In conclusion, it was his submission that the respondent having failed to prove the necessary elements for the grant of an order of temporary injunction and further, having filed an action based on contract 31 years after the agreement was made, the trial court erred in granting the orders of temporary injunction vide its ruling issued on 21.01.2022. 28. He therefore urged the court to find that the appeal is merited and to allow the same with costs. Respondent’s Submissions: 29. Counsel for the respondent submitted on 3 issues for determination in opposition to the appellant’s grounds of appeal. 30. The first issue was whether the application for temporary injunction by the respondent in the subordinate court satisfied the tenets laid down in Giella vs Cassman Brown Company Ltd. On the first element of prima facie case, they submitted that there was no dispute on the fact that there was an Agreement for Sale dated 23.01.1990 between the appellant and the respondent and that the agreed consideration was fully settled. 31. It is therefore their contention that despite the fact that the suit property was registered in the name of the appellant herein as the sole proprietor, the respondent possessed beneficial ELCA Case No. E008 Of 2022 Judgment Page 9

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interest in the suit property arising from the said agreement for sale dated 23.01.1990. 32. On whether the respondent would suffer irreparable injury, it was submitted that the respondent and his agents are and have been in occupation of the suit property since 19.02.1990 and have extensively developed the land by constructing permanent houses and growing seasonal crops. 33. It is their claim that unless the orders granted are upheld and the status quo maintained, the respondent and his agents face a real and actual risk of being evicted from the suit property and rendered destitute. That the said risk and loss cannot be compensated by an award of monetary damages. 34. On the last element of balance of convenience, they relied on the decision in the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR and submitted that the same tilts in favor of the respondent herein. They further argue that there is need to uphold the orders of injunction granted so that the respondent’s suit in the trial court is not rendered nugatory. 35. The second issue was whether the respondent’s action was barred by section 4(1) of the Limitation of Actions Act and subsequently whether the trial court had jurisdiction to entertain the application and suit. Counsel for the respondent outlined the provisions of section 4(1) of the Limitation of Actions Act. ELCA Case No. E008 Of 2022 Judgment Page 10

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36. It was their submission that the respondent’s suit or action is not founded on the sale agreement entered into in 1990 nor is it for prayers for the declaration of ownership. They maintained that the respondent’s suit is seeking orders of permanent injunction to restrain the appellant from trespassing into and accessing the suit property and cannot therefore be said to be statutorily barred. 37. It was therefore submitted that the respondent’s suit is not time barred and that the trial court has the requisite jurisdiction to entertain the suit as filed. 38. The final issue was whether the appellant is in occupation of the suit property. Counsel for the respondent submitted that the respondent and his agents are currently in occupation of the suit land and have extensively developed the suit property by constructing permanent houses and growing crops. 39. In conclusion, the respondent urged the court to uphold the ruling of the trial court and the subsequent order and to dismiss the appeal with costs. Analysis and Determination: 40. I have carefully considered the grounds in the Memorandum of Appeal, the Record of Appeal and the parties’ rival submissions in totality. Consequently, it is my considered view that the following issues arise for determination: ELCA Case No. E008 Of 2022 Judgment Page 11

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a) Whether the respondent’s claim in the trial court is time barred on account of the provisions of section 4(1) of the Limitation of Actions Act. b) Whether the respondent met the requirements for the grant of an order of temporary injunction. c) Whether the present Appeal is merited and the Appellant is entitled to the orders sought therein. d) Who should bear the costs of the appeal. 41. This court as a first appellate court has a duty to analyze and reassess the evidence on record and arrive at its own conclusion. The Court of Appeal in the case of Kenya Ports Authority v Kuston (Kenya Ltd, (2009) 2 EA 212 stated as follows regarding the duty of first appellate court: “This being a first appeal to this Court, the duty of the court, is to reconsider the evidence, evaluate and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect…” Whether the respondent’s claim in the trial court is time barred on account of the provisions of section 4(1) of the Limitation of Actions Act; 42. The first issue herein seeks to determine and ascertain whether the respondent’s claim as filed in the trial court is statutorily ELCA Case No. E008 Of 2022 Judgment Page 12

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time barred by virtue of the provisions of section 4(1) of the Limitation of Actions Act. 43. It is the appellant’s claim that the respondent’s suit based on the Agreement for Sale dated 23.01.1990 is time barred and the trial court was therefore not vested with the requisite jurisdiction to entertain both the application and the main suit. 44. It is further the respondent’s contention that section 4(1) of the Limitation of Actions Act provides that actions founded on contracts should be filed within a period of 6 years whereas the respondent’s claim was filed after a period of 31 years contrary to the clear provisions of the law. 45. The respondent on the other hand, on the issue of the statute of limitation submitted that his suit is neither founded on the sale agreement entered into in 1990 nor is he seeking prayers for the declaration of ownership. It is the respondent’s claim he is only seeking orders of permanent injunction to restrain the appellant from trespassing into and accessing the suit property and his claim cannot therefore be said to be time barred. 46. At the center of the issue herein is the respondent’s claim, the orders sought in the Plaint dated 25.03.2021 and whether the same is time barred by the provisions of section 4(1) of the Limitation of Actions Act and in determining the same, this court will look at the three aspects in totality. 47. Section 4(1) of the Limitation of Actions Act provides as follows: - “4. Actions of contract and tort and certain other actions ELCA Case No. E008 Of 2022 Judgment Page 13

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(1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued— (a) actions founded on contract; (b) .......” 48. Section 4(1) (a) of the Act as stated above thus provides that no actions founded on contract can be brought/filed after the end of 6 years. 49. The Court of Appeal in Langat v Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR) cited with approval the decision of the court in the case of Divecon vs Samani(1995-1998) EA 48 that stated as follows:“….to us, the meaning of the wording of section 4 (1) is clear beyond any doubt. It means that no one shall have the right or power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain what cannot be done namely, an action that is brought in contract six years after the cause of action arose or any application to extend such time for the bringing of the action. A perusal of Part III shows that its provisions do not apply to actions based on contract. In light of these clear statutory provisions, it would be unacceptable to imply as the learned Judge of the Superior Court did, that „„the wording of section 4 (1) of the ELCA Case No. E008 Of 2022 Judgment Page 14

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Limitation of Actions Act (Chapter 22) suggests a discretion that can be invoked.” 50. I have carefully perused plaint dated 25.03.2021 and the application dated 27.04.2021 in the Record of Appeal as well as the statement of defence and replying affidavit both dated 30.03.2021 and it is not in dispute that the respondent’s claim is premised on the Agreement for Sale dated 23.01.1990. 51. The respondent avers that his claim is solely for an order of permanent injunction and not a declaration of ownership or enforcement of the said agreement for sale dated 23.01.1990. In my considered opinion, this is a misapprehension of the law. 52. The totality of the facts contained in the plaint and the final orders sought therein as well as the application which resulted in the impugned ruling, is that the basis of the respondent’s claim is the Agreement for Sale dated 23.01.1990. 53. This court is careful not to delve into the merits of the substantive issues in dispute. However, it is my considered view that the effect and basis for the grant of the order of permanent injunction sought in the plaint, if allowed, would be a demonstration by the respondent of a possession of either a legal, contractual or proprietary rights recognized under the law. Therefore, the respondent cannot separate the Agreement for Sale dated 23.01.1990 and the prayer for permanent injunction as sought. 54. In view of the foregoing, it is therefore the finding of this court that the respondent’s claim as filed in the trial court is time ELCA Case No. E008 Of 2022 Judgment Page 15

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barred by virtue of the provisions of section 4(1) of the Limitation of Actions Act. 55. A question on limitation is a question that goes to the root of the jurisdiction of a court to entertain a suit filed before it since it is a clear point of law. In the case of Bosire Ongero vs Royal Media services [2015] eKLR, the Court stated that:"...The issue of limitation goes to the jurisdiction of court to entertain claims and therefore if a matter is statute barred, the court has no jurisdiction to entertain the same. And even if the issue of limitation is not raised by a party to the proceedings, since it is a jurisdictional issue, the court cannot entertain a suit which it has no jurisdiction over.” 56. Consequently, this court finds that the respondent’s suit is time barred and the trial court did not therefore have the requisite jurisdiction to hear and determine the suit and the application as filed. Whether the respondent met the requirements for the grant of an order of temporary injunction; 57. The second issue herein seeks to ascertain whether the respondent in the trial court satisfactorily met the requirements for the grant of an order of temporary injunction to the required standard. ELCA Case No. E008 Of 2022 Judgment Page 16

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58. This court having held that the respondent’s claim was time barred by virtue of the provisions of section 4(1) of the Limitation of Actions Act in issue (i) above and that the said limitation ousted the jurisdiction of the trial court to hear and determine the application dated 27.04.2021 as well as the suit filed vide the Plaint dated 25.03.2021, this court finds no need to delve into the merits of the principles of temporary injunction as outlined in the celebrated case of Giella vs Cassman Brown. 59. Consequently, the Notice of Motion Application dated 27.04.2021 seeking orders for temporary injunction and the suit ought to have been struck out for want of jurisdiction. Whether the present Appeal is merited and the Appellant is entitled to the orders sought therein; 60. The third issue for determination is whether the present appeal is merited and the appellant is therefore entitled to the reliefs sought therein. 61. In light of the findings in issues nos. (i) and (ii) above, it is the finding of this court that the present appeal is merited and the appellant is therefore entitled to the orders sought therein. 62. In essence thereof, this court finds that the trial court erred in entertaining the application and issuing orders of temporary injunction when the respondent’s claim was time barred by dint of section 4(1) of the Limitation of Actions Act. ELCA Case No. E008 Of 2022 Judgment Page 17

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Who should bear the costs of the appeal; 63. The general rule is that costs follow the event unless the court for good reason directs otherwise. 64. In the instant case, having held that the present appeal is merited, it is the finding of this court that the appellant is entitled to the costs of the present appeal as well as those of the application dated 27.04.2021. 65. The costs of the appeal will therefore be borne by the appellant. Conclusion: 66. In the upshot, I accordingly find that the present Appeal vide the Memorandum of Appeal dated 24th March, 2022 is merited and same is hereby allowed on the following terms: 1. The Appeal be and is hereby allowed. 2. The Ruling of the Trial Court dated 21.01.2022 and the subsequent Order dated 21.03.2022 be and is hereby set aside, and substituted with an order striking out the application dated 25.3.2021 and amended on 27.4.2021. 3. Further, an Order be and is hereby issued Striking Out the respondent’s suit vide the Plaint dated 25.03.2021 for being statutorily time barred on account of the provisions of section 4(1) of the Limitation of Actions Act. 4. The costs of the present appeal as well as the costs of the suit and application in the trial court be borne by the respondent. 67. It is so ordered. ELCA Case No. E008 Of 2022 Judgment Page 18

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DATED, SIGNED and DELIVERED at ELDORET this 24th day of SEPTEMBER, 2026. HON. C. K. YANO JUDGE In the virtual presence of:Mr. Mua Wambua for Appellant No appearance for Respondent Court Assistant – Laban ELCA Case No. E008 Of 2022 Judgment Page 19

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