Mwangi v Kuhutha

3. iii. The learned Magistrate erred in law and principle by striking out the Appellant’s suit on grounds of jurisdiction and limitation after having previously assumed jurisdiction and granted interim injunctive relief in the same matter, thereby acting inconsistently, approbating and rendering a contradictory decision. iv. The learned Magistrate acted in excess of jurisdiction by eectively reviewing and setting aside a lawful court order in the absence of an application for review, appeal or setting aside. v. The learned Magistrate erred in law and fact by disregarding a clear court order on record merely because the application giving rise to the order was not physically on the le, instead of calling for the court record. vi. The learned Magistrate erred in law and fact by determining the issue of jurisdiction suo motu in the substantive suit despite the issue having been conclusively dealt with at the interlocutory stage through an extension order. vii. The learned Magistrate misdirected himself in law by holding that contractual claims cannot be extended under the Limitation Act without appreciating that the propriety of the extension order could not be collaterally challenged in the main suit. viii. The learned Magistrate violated the Appellant’s right to a fair hearing under the Constitution by raising and determining the issue of jurisdiction suo motu without aording the Appellant an opportunity to be heard. ix. The learned Magistrate failed to uphold the doctrine of nality and sanctity of court orders, thereby occasioning a miscarriage of justice. The Appellant thus prayed for orders that: i. Allow the appeal in its entirety. ii. Set aside the judgement and decree striking out the suit. iii. Reinstate the Appellant’s suit for hearing and determination on merit before a dierent Magistrate of competent jurisdiction. iv. Award costs of the appeal and of the lower court to the Appellant. 4. The Respondent neither entered appearance nor led any response. 5. The Appeal was admitted for hearing on 14th April 2026, and directions were taken that it be disposed of by way of written submissions wherein, in his submissions dated 8th May, 2026, the Appellant summarised the lower court case and founded his submissions on the following issues for resolution: i. Whether the Learned Trial Magistrate erred in law in striking out the Appellant’s suit despite the existence of a valid court order granting leave to le suit out of time. ii. Whether the Learned Trial Magistrate had jurisdiction to disregard and eectively overturn an order issued by a court of concurrent jurisdiction. iii. Whether the Learned Trial Magistrate violated the Appellant’s right to a fair hearing. iv. Whether this Honourable Court should allow the appeal and reinstate the suit for hearing on merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5807/eng@2026-09-24 2

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6. On the rst issue for determination, he submitted that, prior to ling the suit before the subordinate court, he had obtained leave to le the suit out of time, vide Naivasha Miscellaneous Application No. E48 of 2021, and that the order was lawful, valid and binding unless set aside on review or appeal. He further submitted that the learned Magistrate erred in disregarding the subsisting order and striking out the suit on the ground of limitation. 7. He argued that it is trite law that court orders remain valid and enforceable unless set aside by a competent court. He contended that a court of concurrent jurisdiction cannot sit on appeal over the decision of another court of equal status; therefore, the trial court improperly questioned the propriety of the extension order in the absence of any formal application seeking review, setting aside, or appeal against the said order; thus, it acted in excess of jurisdiction, arriving at an erroneous conclusion. 8. On the second issue for determination as to whether the learned trial Magistrate had jurisdiction to disregard and eectively overturn an order issued by a court of concurrent jurisdiction, he responded in the negative and argued that once leave had been granted by the Court in Miscellaneous Application No. E48 of 2021, the subordinate court was seized of the main suit and was bound by that order. The learned Trial Magistrate therefore could not purport to question, vary, or invalidate the said order suo motu. The law is settled that a court of equal jurisdiction cannot review or overturn the decision of another court of concurrent jurisdiction except through legally established procedures. He contended that the impugned ruling indirectly set aside the leave earlier granted without any application being made and without aording him an opportunity to defend the validity of the said order. He submitted that such action amounted to an illegality and a miscarriage of justice. 9. As to whether his right to a fair hearing was violated, the Appellant submitted in the armative, contending that the issues of jurisdiction and limitation were raised and determined by the Learned Trial Magistrate without aording him a fair opportunity to be heard. He relied on Article 50 of the Constitution, which guarantees every litigant the right to a fair hearing, to submit that the trial court was under a duty to hear the parties before making a determination that had the eect of terminating the entire suit. That, by striking out the suit without aording him a hearing on the validity and eect of the leave order already issued, the Trial Court violated his constitutional right to a fair hearing. 10. On the fourth issue, namely whether the appeal should be allowed, he submitted that courts are obliged to determine disputes on the merits whenever possible. That striking out pleadings was a draconian remedy that ought to be exercised sparingly and only in the clearest of cases. That in the present case he had demonstrated the existence of a sale agreement dated 8th February, 2012, in respect of Land parcel No. Naivasha/Mwichingiri Block 4/4341, and had raised a substantive issue requiring adjudication through a full hearing. That the trial court had thus erred in summarily terminating the suit instead of allowing the parties to ventilate their respective cases. He urged the Court to intervene and reinstate the suit for hearing and determination on the merits before a dierent Magistrate. 11. In conclusion, he submitted that the instant appeal is meritorious and ought to be allowed, as the Learned Trial Magistrate misdirected himself both in law and in fact by striking out the suit despite the existence of a valid and subsisting court order granting leave to le suit out of time, thereby acting without jurisdiction. 12. He thus prayed that the Court be pleased to: i. Allow the appeal in its entirety. ii. Set aside the judgement and decree striking out the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5807/eng@2026-09-24 3

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iii. Reinstate the Appellant’s suit for hearing and determination on merit before a dierent Magistrate of competent jurisdiction. iv. Award costs of the appeal and of the lower court to the Appellant. Analysis of the evidence. 13. The Court of Appeal in Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR), held as follows; “ A rst appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A rst Appellate Court is the nal court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The rst appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a rst Appellate Court can appreciate the entire evidence and come to a dierent conclusion.” 14. The core dispute in this matter is that vide a Plaint dated 17th December 2021, the Appellant (Plainti) led a suit seeking judgment against the Defendant for: i. An order of specic performance for the Transfer of Land Parcel No. Naivasha/Mwichiringiri Block 4/4341 to the Plainti in the ALTERNATIVE, the refund of Kshs. 3,000,000/= with interest of 50% for every month the money remains unpaid, starting from 8th March 2012. ii. Costs of the suit and interest at Court rates for the costs of suit and purchase price. iii. Any other relief that the Honourable Court may deem t to grant. 15. The Defendant neither entered appearance nor led any defence; thus judgement had been entered against him and the matter proceeded by way of formal proof hearing wherein the Plainti, Paul Gathura Mwangi, testied as PW1 as follows: 16. That he was a farmer and Jua Kali artisan from Naivasha, and that he had brought the suit against the Defendant, Pius Muiruri Kuhutha, seeking the transfer of Plot No. NAIVASHA/ MWICHIRINGIRI BLOCK 4/4341 situated in Karagita, which he had purchased from him. 17. He stated that he had paid the Defendant the full purchase price of Kshs. 3,000,000/= and requested that his witness statement, led on 20th December 2021, be adopted as his evidence-in-chief. He further produced several documents to be admitted as exhibits, namely: i. Exhibit 1: The Sale Agreement dated 8th February 2021. ii. Exhibit 2: Certied copies of Green Cards conrming that the plot was registered in the Defendant's name. iii. Exhibit 3: A demand letter sent to and received by the Defendant, requesting the transfer of the plot. iv. Exhibit 4: A court order dated 16th November 2021 issued in Miscellaneous Application No. 048 of 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5807/eng@2026-09-24 4

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18. The Plainti prayed that the court order the Defendant to transfer the plot to him, or, in default, that the court execute the transfer on the Defendant's behalf. He also requested that the Defendant be ordered to pay the costs of the suit. The Plainti had thus closed his case. 19. A summary of his undated witness statement, led on 20th December 2021, was that he had entered into a Sale Agreement with the Defendant to purchase Plot No. NAIVASHA/MWICHIRINGIRI BLOCK 4/4341 (0.059 Hectares with 7 built-up rooms) in Karagita Market for Kshs. 3,000,000/=, which he paid in full upon execution. Both parties and witnesses executed and signed the agreement (Pauline Wacheke Kamanu for the Defendant, David Wachira Rutumo for the Plainti), with national identity card numbers recorded. 20. At the time, the Defendant disclosed that the title was charged at Kenya Commercial Bank (KCB) and undertook to discharge it, eect the transfer, and hand over the original Title Deed by 8th March 2012. That in case of default, the Defendant was to refund the Kshs. 3,000,000/= along with an agreed penalty interest of 50% per month until fully paid. 21. Subsequently, the Defendant failed to eect the transfer by 8th March 2012, repeatedly postponed performance, and went into hiding. The Plainti traced the Defendant's location only in October 2020 and served a demand notice, which was ignored. The Plainti therefore sought specic performance, an order for transfer of the plot to him; in the alternative, a full refund of Kshs. 3,000,000/= plus interest at 50% per month from 8th March 2012 until payment in full. That there be an injunction/inhibition restraining the Defendant from selling or alienating the land, and costs of the suit and interest thereon at court rates. Determination 22. I have considered the record of appeal, the holding of the trial Magistrate, the written submissions of the Appellant, who led a notice to act in person (In the Appeal) dated 2nd February 2026, and the applicable law. 23. Conscious of my duty as the rst Appellate Court in this matter, I have reconsidered the decision appealed against and the evidence adduced in the trial court, both on matters of fact and law, as it is trite of me and I nd, from the prayers sought herein by the Appellant, the issues arising therein for determination being whether this Appeal is Merited. 24. The Appellant/Plainti’s case is a claim for breach of contract arising from an unfullled land sale agreement, seeking either the transfer of the property or a full refund with interest. His case rests on the fact that on 8th February 2012, he agreed to purchase land parcel Naivasha/Mwichingiri Block 4/4341 (measuring 0.059 hectares, containing 7 built-up, active commercial rooms at Karagita Market) from the Respondent Defendant (Pius Muiruri Kuhutha) for Kshs. 3,000,000/=. 25. He subsequently paid the full purchase price of Kshs. 3,000,000/= upon execution of the agreement. The agreement was properly executed in the presence of two witnesses (David Wachira Rutumo for the Plainti and Pauline Wacheke Kamanu), wherein the Defendant disclosed that the title deed was held by Kenya Commercial Bank (KCB) as security for a charge and undertook to discharge the bank charge and deliver the original Title Deed and transfer the land to the Plainti by 8th March 2012. 26. The Defendant failed to discharge the bank charge, failed to transfer the land, and repeatedly postponed performance before going into hiding to evade the Plainti. He nally traced him in https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5807/eng@2026-09-24 5

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October 2020, served a formal Demand Notice and thereafter led an application in the Naivasha CM's Court in E48 of 2021 seeking an extension of time to le suit against the Respondent/Defendant. 27. His application was granted by an order dated 16th November 2021, and he subsequently led suit against the Respondent vide a Plaint dated 17th December 2021, seeking Specic Performance for the transfer of Plot No. Naivasha/Mwichingiri Block 4/4341 and, in the alternative, a refund of the Kshs. 3,000,000/= purchase price, together with contractual penalty interest of 50% per month calculated from 8th March 2012 until full payment. 28. The matter proceeded for hearing on formal proof and was struck out vide a judgement dated 7th September 2025 for want of jurisdiction. Being dissatised with the judgement, the Appellant led the present appeal. 29. I nd that the Appellant’s suit was founded on a contract for the sale of land parcel Naivasha/ Mwichingiri Block 4/4341, allegedly executed on or about 8th February 2012, with the cause of action accruing on 8th March 2012. 30. Section 4(1)(a) of the Limitation of Actions Act provides as follows: ‘’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…..’’ 31. Under the provisions of Section 4(1)(a) of the Limitation of Actions Act, an action founded on contract cannot be brought after the expiration of six (6) years from the date on which the cause of action accrued. The breach in this matter occurred on 8th March 2012, when the Defendant failed to transfer the title/refund money; therefore, the 6-year period expired on 8th March 2018, making the Appellant’s suit dated 17th December 2021 and led on 20th December 2021 fatally time-barred by over three (3) years. 32. Sections 27 and 28 of the Limitation of Actions Act, which provisions of the law the Appellant had relied on to le his application dated 11th November 2021, in the trial court to seek leave to le suit out of time, are specically designed for actions claiming damages for negligence, nuisance, or breach of duty where the damages claimed consist of or include damages for personal injuries. The Appellant’s claim is founded on a breach of contract for the sale of the suit land, and so the power to extend time under Section 27 is strictly gate-kept and cannot be imported into contracts governed by Section 4(1) (a) of the Limitation of Actions Act. 33. The Subordinate Court therefore lacked statutory power and jurisdiction under Section 27 of the Limitation of Actions Act (Cap 22) to extend time for ling a contractual claim, as statutory extension of time is strictly restricted to tort actions involving personal injuries. 34. On the other hand, Section 28 of the Limitation of Actions Act outlines the procedure for seeking the court's leave. Even if the court were to consider these sections applicable to land, an application for leave under Section 28 must be made within the 12-month rule, which is a judicial standard used to test whether an Applicant has acted with reasonable diligence once they discovered the facts they claim were hidden. This was a suit hinged on a contractual claim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5807/eng@2026-09-24 6

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35. In Wanjohi v Pharis (Environment and Land Miscellaneous Application E001 of 2025) [2025] KEELC 679 (KLR) (20 February 2025) (Ruling) (persuasive), the Court had, at paragraph 11, observed as follows: “ … Umpteen times, our courts have emphasized that jurisdiction to enlarge limitation period is donated by the Constitution, statute or subsidiary legislation. Where limitation period has been set by the law and the courts have not been granted jurisdiction to enlarge that limitation period, the courts have no jurisdiction to enlarge the limitation period….” 36. The Court of Appeal had outlined the law on enlargement of limitation period under Section 27 of the Limitation of Actions Act in the case of Mary Osundwa v Sugar Company Limited [2002] KECA 203 (KLR), wherein it had held as follows: “ This section clearly lays down the circumstances in which the court would have jurisdiction to extend time. That action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the plainti as a result of the tort. This section does not give jurisdiction to the court to extend time for ling suit in cases involving contract or any other cause of action other than those in tort.” In the case of Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR) the Court of Appeal had held as follows: "It is common ground that the cause of action in this matter was based on contract and that section 4 of the Limitation of Actions Act prohibits suits led after the end of six years from the date on which the cause of action accrued. As Potter, JA observed in the case of Gathoni vs Kenya Cooperative Creameries Limited (Civil Application No. 122 of 1981): "The law on limitation is intended to protect defendants against unreasonable delay in bringing of suits against them. The statute expects the intending plainti to exercise reasonable diligence and to take reasonable steps in his own interest." It is also trite law that the period of limitation cannot be extended. If any authority is necessary, this Court in Divecon vs Samani (1995-1998) EA 48 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 Limitation of Actions Act (Chapter 22) suggests a discretion that can be invoked.’’ 37. In Wilson Osolo v John Ojiambo Ochola & Another [1996] eKLR, the Court of Appeal had observed as follows; “ …Whilst the time limited for doing something under the civil procedure rules can be extended by an application under order 49 of the Civil Procedure Rules that procedure cannot be availed of for the extension of time limited by statute,… There is no provision https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5807/eng@2026-09-24 7

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for extension of time to apply for such leave in the Limitation of Actions Act (Cap 22, Laws of Kenya) which gives some limited right for extension of time to le suits after expiry of a limitation period’’. 38. The Supreme Court of Kenya emphasised the centrality of jurisdiction in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR as follows: “ A court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 39. While the Subordinate Court granted the ex-parte order on 18th November 2021, that order, I nd, was legally unsustainable as it had been granted without jurisdiction and therefore could not validate a statute-barred suit. Allowing the suit to proceed was therefore an outright abuse of the court process; it follows that the Appellant/Plainti’s claim was statute-barred and remains statute-barred, and the order granted without jurisdiction was null and void ab initio (from the beginning). No court has jurisdiction to entertain the claim regardless of the hardship. 40. In the end, I nd as follows; i. The Leave granted to the Appellent/Plainti to le suit out of time vide the Order dated 18th November 2021 in Miscellaneous Application No. 048 of 2021 is hereby vacated, set aside, and declared nullity ab initio. ii. The Appellant/Plainti’s Plaint dated 17th December 2021 is hereby struck out for being statute-barred, incompetent, and an abuse of the process of the Court. iii. The Appeal is dismissed. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 24TH DAY OF SEPTEMBER 2026. M.C. OUNDO ENVIRONMENT & LAND COURT– JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5807/eng@2026-09-24 8

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