Mutsoma v Nzai & 8 others

iii. Costs and Interests of the Suit. 4. The suit is defended by the Defendants, who entered an appearance through the rm of Alwi Mohamed and Company Advocates. The Defendants led a Notice of Preliminary Objection dated 12th May 2026 premised on grounds that, rst, the suit is time-barred by dint of Section 4(1) (a) of the Limitation of Actions Act Cap 22 Laws of Kenya, the claim being founded on an alleged agreement purportedly entered into on or about the year 1978; that any claim founded on contract ought to have been instituted within 6 years from the date the cause of action accrued. They prayed for the suit to be dismissed with costs to the Defendants. 5. The Plainti and the Defendant led their submissions dated 14th July 2026 and 12th July 2026 in respect of the said Preliminary Objection, which this Court has considered. 6. The Plainti submits that the 6-year timeline contained under Section 4(1) (a) of the Limitation of Actions Act does not apply to recovery of land, which is instead 12 years. He submits that time starts to run from the date of breach and not the agreement’s date. He posits that time started to run recently when the Defendant refused to fulll their obligations. 7. The Plainti submits that the overriding objectives and the right to fair hearing incline towards the delivery of justice without taking any consideration of procedural technicalities. He also urged this court to consider his frail health and urged this court to dismiss the Preliminary Objection. 8. The Defendants, in contrast, maintained that the suit oends the mandatory provisions of Section 4(1) (a) of the Limitation of Actions Act which requires that actions founded on contract be instituted within 6 years. They maintain that the Plainti, in his own pleadings, admits that the cause of action arose sometime in 1978 when he entered into the agreement with the deceased for the purchase of the suit property. 9. The Defendants submitted that any action therefore in respect of the said agreement ought to have been led on or before the year 1984. The Defendants placed reliance on Jane Wambui Gitau & Another versus Ibrahim Kinuthia Boro, Onyoni v Siro (Donor) sued through Janet Siro (Donee) Civil Appeal 154 of 2018, Gathoni v Kenya Cooperative Creameries Ltd (1982) eKLR, Great Tang Trading Kenya Limited & Another v Speedaf Logistics Kenya Limited and Another (2026) and Owner of Motor Vessels ‘Lilian S” versus Caltex Oil (Kenya) Ltd. 10. They submit that the issue of time limitation is not merely a procedural defense but a jurisdictional issue. Finally, they sought the dismissal of the Plainti’s claim. 11. The only issue for determination before this court is therefore whether the Plainti’s claim is timebarred by dint of Section 4 (1) (a) of the Limitations of Actions Act Cap 22 Laws of Kenya. 12. The foregoing provision states as follows: “ Actions of contract and tort and certain other actions 1. 13. 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...” Law JA in Mukisa Biscuits Manufacturing Ltd. vs. West End Distributors Ltd. Civil Appeal No. 9 of 1969 [1969] EA 696,) said: “ ...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6138/eng@2026-09-30 2

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preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or 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.” 14. Thus, it is the rule that a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 15. I have perused the Plaint, and I note that the Plainti refers to a land sale agreement entered into on 20th May 1978 between himself and Charo Nzai (Deceased). The Plainti has also led an alleged “case” dated 17th April 1997, No. 8/1997, before the village elders. He has annexed an agreement in which the deceased consented to transfer to him 8 acres out of the suit property. 16. This court was faced with a similar position in Mbuge & another v Ole Sakuda [2026] KEELC 2632 (KLR) and the court noted as follows, which I agree with: “ “ 53. The Court of Appeal in Divecon Ltd v Samani [1995–1998] 1 EA 48 underscored the mandatory nature of limitation statutes in the following terms: “No one shall have the right or power to bring an action after the end of six years from the date on which the cause of action accrued…” 54. The Appellants attempted to reframe their claim as one for recovery of land so as to invoke Section 7 of the Act. However, a claim for recovery of land presupposes an already existing proprietary right, whereas the Appellants herein were seeking to acquire title through enforcement of an agreement. Their own pleadings acknowledge the Respondent as the registered proprietor and seek transfer from him. 55. In Wamwea v Catholic Diocese of Murang’a Registered Trustees [2003] eKLR, the Court held that a claim for specic performance is subject to Section 4(1) (a) of the Limitation of Actions Act. In the circumstances, the learned trial magistrate cannot be faulted for treating the rst three prayers as contractual and subject to the six-year limitation period.” 15. In the present case, the Plainti seeks to enforce the agreement dated 20th May 1978. The principal relief sought is an order of specic performance compelling the Defendants, as the legal representatives of the deceased's estate, to transfer the disputed 8 acres into the Plainti's name. The claim is, in essence, contractual in nature and therefore falls squarely within the ambit of Section 4(1)(a) of the Limitation of Actions Act. 16. I place considerable emphasis on Section 7 of the Limitation of Actions Act, which governs actions for the recovery of land. The provision contemplates the existence of a pre-existing proprietary right capable of enforcement. Upon the expiry of twelve years, the registered proprietor is statutorily barred from recovering the land, while the rights of a person in adverse possession crystallize into an enforceable legal interest. 17. In the instant case, the Plainti has not sought relief founded on adverse possession, notwithstanding the photographic evidence demonstrating developments on the suit property and the agreement evidencing the purchase of the land from the deceased in 1978. The circumstances of this matter poignantly illustrate the challenges frequently encountered by self-represented litigants. The dispute https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6138/eng@2026-09-30 3

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concerns 8 acres of land allegedly purchased in 1978, yet the Plainti elected to pursue a claim for specic performance.The claim for specic performance is plainly statute-barred, the statutory limitation period of six years having long expired from the date of the agreement. 18. Even were this Court to take into account the subsequent agreement allegedly executed between the Plainti and the deceased in 1997, the position would remain unchanged. The six-year limitation period would have expired in 2003, rendering the claim equally time-barred. Consequently, the suit cannot be sustained on that basis either. 19. This Court takes the opportunity to encourage self-represented litigants to appreciate the practical realities of litigation. Parties who elect to prosecute or defend proceedings in person invariably face represented opponents who benet from legal expertise and advocacy, often placing them at a distinct disadvantage. The present matter is particularly unfortunate, having regard to the Plainti's advanced age and the medical records and photographs placed before the Court. While the Court is not unmoved by the Plainti's circumstances, its determination must remain anchored in the law. Regrettably, the suit is statute-barred and cannot be entertained. 20. In the result, and for the foregoing reasons, the Plainti's suit is hereby struck out with costs to the Defendants. DATED, SIGNED, AND DELIVERED AT MALINDI ON THIS 30TH DAY OF SEPTEMBER 2026. HON JUSTICE MWANGI NJOROGE JUDGE ENVIRONMENT AND LAND COURT, MALINDI MLDELCLCE056/2026/RLG/DF-15.06.26/DR-30.09.26 Page 2 of 2 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6138/eng@2026-09-30 4

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