Sukhdev Singh Laly v Gerald Richard Kafeero & Another; United States of America Embassy (Interested Party)

b) That this Honourable court be pleased to extend the time for bringing an action for enforcement of a contract and grant leave to the Applicant to file suit against the Respondents and the interested party out of time. 2. The Application is supported by the grounds on the face of the application and in the supporting affidavit sworn by Sukhdev Singh Laly on 11.5.2026. It is deposed that the Applicant is the beneficial owner of the parcel of land known as L.R. No. 7741/337, formerly L.R. No. 7741/96/2, situated at Forward Close, Kitusuri, Nairobi. 3. The Applicant deposes that the Respondents took possession of the suit land and have since assumed ownership pursuant to a Sale Agreement dated 20th November 2003. 4. The Applicant deposes that the agreed purchase price was Kshs. 23,000,000/ out of which the Respondents paid a deposit of Kshs. 16,100,000/-, leaving an outstanding balance of Kshs. 6,900,000/. 5. It is further deposed that it was an express term of the Sale Agreement that the Respondents, as purchasers, would take possession of the property and have the same transferred Page 2 of 16 ELC MISC NO. E146 OF 2026

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into their names pending payment of the purchase price in full. 6. The Applicant deposes that at the time of the sale, the house erected on the suit property was let to a third party at a monthly rent of Kshs. 150,000/-. It was agreed that the Applicant would continue receiving the rental income until the Respondents had paid the purchase price in full. 7. It is deposed that the house erected on the suit property is presently occupied by employees, servants and/or agents of the Interested Party as tenants. 8. The Applicant deposes that the Respondents have never paid the purchase price in full, and a sum of Kshs. 6,900,000/- remains outstanding, notwithstanding that the Applicant had permitted the Respondents to transfer the parcel into their names. 9. It is deposed that, despite the Applicant allowing the Respondents to register the property in their names, the Respondents have failed and/or refused to permit the Applicant to collect the rent payable by the Interested Party or any previous tenant, contrary to the parties' agreement. Page 3 of 16 ELC MISC NO. E146 OF 2026

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10. It is deposed that the Respondents' actions constitute a breach of the Sale Agreement and amount to unjust enrichment, thereby occasioning substantial prejudice to the Applicant, who has neither received the purchase price in full nor been permitted to exercise his proprietary rights and interests in the suit property. 11. It is deposed that the delay in instituting the present proceedings was neither deliberate nor inordinate, but was occasioned by the existence of a previous suit, namely Nairobi ELC No. 501 of 2010, in which the Court directed the Applicant to continue collecting the rental income and allowed the Respondents an opportunity to complete the contract. The Respondents have, however, failed to comply with the said directions. A copy of the judgment is annexed and marked “SSL-1”. 12. It is further deposed that attempts by the Applicant to procure compliance by the Respondents with the judgment delivered by Hon. Justice K. Bor on 26th November 2019 have been unsuccessful. Copies of the correspondence exchanged in that regard are annexed to the affidavit. Page 4 of 16 ELC MISC NO. E146 OF 2026

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13. It is deposed that the Respondents are husband and wife, originally from Uganda, and are likely to be difficult to trace, particularly as they maintain a second home in Uganda. 14. It is further deposed that the Respondents are former employees of the Interested Party and are retired, and that there is a real possibility that they may relocate to Uganda and/or otherwise dispose of the suit property. 15. It is deposed that the Respondents' children are adults and are based in the United States of America, thereby potentially making it difficult to trace the Respondents should the suit property be transferred to a third party. 16. It is finally deposed that the Applicant intends to institute proceedings against the Respondents seeking, inter alia, revocation and/or rescission of the Sale Agreement on account of non-performance, together with a claim for mesne profits. 17. The respondents opposes the application through grounds of opposition dated 29th July 2026 and written submissions dated 31st July 2026 and a list of authorities that the court Page 5 of 16 ELC MISC NO. E146 OF 2026

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lacks jurisdiction to enlarge time and that the intended claim is res judicata. 18. Section 4(1)(a) of the Limitation of Actions Act, Cap. 22 Laws of Kenya, provides that an action founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. 19. Section 4(1) of the Limitation of Actions Act provides as follows: “4. Actions of contract and tort and certain other actions 20. 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 Page 6 of 16 ELC MISC NO. E146 OF 2026

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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.” 21. The intended claim, as disclosed in the present application, arises directly from the Sale Agreement dated 20.11.2003. The Applicant asserts that the Respondents have breached the contract by withholding the remaining purchase price while at the same time preventing the Applicant from collecting rental income. 22. The Court takes note that limitation of time ordinarily runs from the date when the cause of action arose, and not from the date when the underlying contract was executed. 23. After signing the 2003 Sale Agreement, the Applicant let the Respondents occupy and register the property under Page 7 of 16 ELC MISC NO. E146 OF 2026

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their names, which eventually triggered the lawsuit in Nairobi ELC No. 501 of 2010. 24. The Applicant has to demonstrate that the cause of action which he now seeks to institute is a newly accrued cause of action falling outside the contractual dispute that was already the subject of the earlier proceedings and judgment. 25. A continued failure to meet the obligations, followed by repeated demands for compliance, is not enough, on their own, to give the Court the general authority to overlook or extend the statutory deadline. 26. The Court of Appeal has consistently held that there is no jurisdiction to extend the limitation period in respect of an action founded on contract. In Divecon Ltd v Samani [1995-1998] 1 EA 48(Supra). The same principle has been reiterated in subsequent decisions, including Mary Osundwa v Nzoia Sugar Company Limited [2002] eKLR and Willis Onditi Odhiambo v Gateway Insurance Company Limited [2014] eKLR. 27. The Court acknowledges that the Applicant heavily relies on Nairobi ELC No. 501 of 2010, and its judgment Page 8 of 16 ELC MISC NO. E146 OF 2026

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of 26.11. 2019. While this lawsuit is highly relevant and must be taken into account, the simple fact that the parties have already been to court over this transaction does not give this Court the legal authority to extend a statutory deadline set by the Limitation of Actions Act. Legal time limits are strictly set by law and statute and cannot be ignored simply because of convenience, personal hardship, or fears about enforcing a judgment. 28. Extension of time, as held in Nicholus Kiptoo Arap Korir Salat versus IEBC [2014]EKLR, is not a matter of right but a judicial discretion exercisable not on whims or personal preferences of the court. 29. There must be sufficient reasons for the inordinate delay, explanation for the delay and the prejudice likely to be occasioned to both parties. Interest of justice and public policy are the other considerations. 30. The Court is equally mindful of the Applicant's assertion that he has suffered prejudice by reason of the outstanding balance of Kshs. 6,900,000/- and the alleged loss of rental income. Those allegations may form the basis of an appropriate claim if brought within the applicable statutory Page 9 of 16 ELC MISC NO. E146 OF 2026

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framework. They do not, however, confer upon this Court jurisdiction to extend the limitation period for a contractual cause of action. 31. The doctrine of res judicata is embodied in Section 7 of the Civil Procedure Act, which provides that: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties litigating under the same title and has been heard and finally decided by such court.” 32. The doctrine is intended to bring finality to litigation and to prevent parties from repeatedly litigating matters which have already been conclusively determined by a competent court of jurisdiction. The Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, identified the essential requirements of res judicata as including that the matter was directly and substantially in issue in the former suit; the former suit was between the same parties or parties claiming under them; the parties litigated under the same title; the issue was heard and Page 10 of 16 ELC MISC NO. E146 OF 2026

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finally determined; and the former court was competent to determine the matter. 33. The Supreme Court has likewise stressed that this legal doctrine hinges on several key factors: See also John Florence Maritime Services Limited & Another V Cabinet Secretary for Transport and Infrastructure & 3 others [2021] KESC 3 a (KLR), the finality and substance of the initial ruling or judgment, the jurisdiction and authority of the court that issued it, and whether the involved parties, core legal issues, and claims are identical. 34. Therefore, the court must determine if this new case addresses the exact same core issues that were already fully decided in the 2010 Nairobi ELC lawsuit. 35. The Applicant has made the prior legal proceedings the focal point of this application. He acknowledges that the dispute regarding both the property and the contractual relationship was previously litigated before this court. Furthermore, he uses the court's 26.11. 2019, judgment to argue that the Respondents were granted a specific opportunity to fulfill their contractual obligations. Page 11 of 16 ELC MISC NO. E146 OF 2026

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36. The intended proceedings, as presently disclosed, in my view seek to reopen the same contractual relationship. The Applicant proposes to seek revocation and/or rescission of the Sale Agreement on account of an alleged non-performance, recovery arising from the alleged outstanding purchase price and mesne profits. 37. The Court must differentiate between issues that were already resolved in the previous lawsuit and new issues that arose from a fresh breach after the judgment was made. See also Henderson V Henderson [1843] 3 Hare 100. 38. Once a court has conclusively decided the core issues of a dispute, a party cannot reopen the same case just by asking for different or additional remedies. Specifically, if the previous lawsuit, Nairobi ELC No. 501 of 2010, already determined whether the Respondents fulfilled their sale agreement obligations, whether the Applicant had a right to rental income before completion, and what each party's rights are regarding the property, those exact matters cannot be litigated again in a new lawsuit. Page 12 of 16 ELC MISC NO. E146 OF 2026

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39. Further, Section 7 of the Civil Procedure Act incorporates the principle of constructive res judicata. Explanation 4 provides that: “Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 40. The doctrine therefore extends beyond matters which were expressly determined. It may also apply to matters which properly belonged to the subject matter of the earlier litigation and which the party, exercising reasonable diligence, ought to have raised in that former litigation. The courts have recognized this as constructive res judicata. 41. In the present case, the Applicant's intended claim arises out of the same Sale Agreement dated 20.11. 2003 and concerns the same parcel of land. The Applicant's own evidence establishes that the contractual dispute had already resulted in litigation between the parties in 2010 and leading to judgment in 2019. Page 13 of 16 ELC MISC NO. E146 OF 2026

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42. The Court cannot view the upcoming legal action as a completely fresh and separate lawsuit based on the evidence currently available. A party cannot bypass the res judicata rule, which prevents the same case from being tried twice simply by renaming their demands as a cancellation, reversal, claim for lost rent, or breach of contract. If the core of those claims was already decided, or should have been brought up during the original lawsuit, they cannot be revisited now. 43. There is, however, an important qualification. Where a party alleges a new and distinct cause of action arising after the former judgment, such subsequent cause of action is not automatically barred by res judicata, merely because it relates to the same property or contractual relationship. The court must examine the former pleadings, judgment and decree alongside the proposed cause of action to determine precisely what was adjudicated. 44. On the facts disclosed in this application, the Applicant has not sufficiently demonstrated that the reliefs now proposed Page 14 of 16 ELC MISC NO. E146 OF 2026

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arise from a wholly new cause of action independent of the dispute determined in Nairobi ELC No. 501 of 2010. Instead, the intended proceedings appear substantially connected to the same contractual obligations and the same alleged non-performance which formed the subject of the earlier litigation. 45. The Court consequently finds that the doctrine of res judicata presents a substantial and, on the material before it, is dispositive impediment to the proposed fresh proceedings. 46. In the circumstances, I find that the intended proceedings, insofar as they are founded on the Sale Agreement dated 20th November 2003 and seek its enforcement, rescission or revocation on account of non-performance, are subject to the limitation provisions applicable to actions founded on contract. The Court has no general jurisdiction to extend that period. 47. The Notice of Motion dated 11th May 2026 is not merited and is hereby dismissed with no orders as to costs. Page 15 of 16 ELC MISC NO. E146 OF 2026

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DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF OCTOBER 2026 ………………………….. HON. JUSTICE C.K. NZILI JUDGE In the presence of : Miss Chebet for Kamunda for 1st & 2nd Defendants Onyango Odhiambo for Applicant Court assistant ; Julius Legal Researcher ; Bevalyn Nyakwana Page 16 of 16 ELC MISC NO. E146 OF 2026

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