Elizabeth Atiang v Tersa Adhiambo Shikuku

2. The suit was commenced vide the plaint dated 21st March, 2018, which was later replaced with the amended plaint dated 14th April, 2023. The original Plaintiff was one ATIANGA SIALA GERVASE (the original Plaintiff), who became incapacitated in the pendency of the suit and, by court order made on 22 nd February, 2023, was substituted by the Appellant herein. 3. The Appellant’s case in the suit as laid out in the amended plaint was that the original Plaintiff was at all material times the legal owner of land parcel known as KISUMU/CHIGA/231 (herein called the suit land), having bought the land from the Defendant (Respondent herein) and her deceased husband. That the original Plaintiff took possession of the suit land in 1992 under the agreement and has been planting trees and cultivating the land. 4. The Appellant's complaint was that the Defendant (Respondent herein) had unlawfully refused to transfer the sold land to the Appellant and had also denied the Appellant entry onto the land. That the Respondent was unlawfully working on the land. 5. The Appellant therefore sought; ELCLA E025/2024 JUDGEMENT 2|P a g e

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a) a declaration that the Plaintiff Atianga Siala is the lawful owner of land parcel known as KISUMU/CHIGA/231. b) Orders do issue to compel the Defendant to subdivide the suit land and transfer to the Plaintiff Atienga Siala his lawfully acquired portion of land. c) A permanent injunction restraining the Defendant, their agents, servants, assignees, relatives, or whoever claiming title or acting on their behalf from remaining in, occupying, continuing to occupy, constructing a structure on the same, selling, trespassing and/or encroaching and in any other manner interfering with the Plaintiff Atieng’a Siala’s portion of land parcel No. KISUMU/CHIGA/231. d) In the alternative, an order compelling the Defendant to refund the purchase price to the Plaintiff current Atienga Siala, taking into consideration the value of the land with interest. e) Costs of the suit. f) Any other relief the court may deem fit to grant. ELCLA E025/2024 JUDGEMENT 3|P a g e

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6. The Respondent filed a Statement of Defence dated 11 th September, 2018, vide which she denied the Appellant’s claim and prayed that the suit be dismissed with costs. 7. The record shows that the suit was heard before the trial court, which, vide the judgment delivered on 24 th April, 2024, found that the suit was statute-barred and dismissed it with costs. The appeal 8. Aggrieved by the judgment, the Appellant preferred the present appeal vide the Memorandum of Appeal dated 25 th April, 2024 on the ground that; a) The learned Magistrate erred in law and in fact by failing to find that the Appellant is the rightful owner of the disputed parcel of land. b) The learned Magistrate erred in law and fact by dismissing the suit because it is statute-barred. c) The learned Magistrate did not appreciate the overwhelming evidence given by the Appellant. d) The decision was against the weight of the evidence. e) The learned Magistrate was completely biased against the Appellant. ELCLA E025/2024 JUDGEMENT 4|P a g e

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Submissions 9. Pursuant to directions given on 27th October, 2025, the appeal was heard by way of written submissions. Written submissions dated 11th November, 2025 were filed on behalf of the Appellant by Mwamu and Company Advocates. On behalf of the Respondent, written submissions dated 10th January, 2026 were filed by Moses J.A. Orengo Advocates. Analysis and determination 10. This being a first appeal, this court is obligated to re-analyse the evidence placed before the trial court and draw its own conclusions. (see Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123) 11. A reading of the court record shows that the rest of the prayers, except the alternative prayer for refund of the purchase price, were determined through a ruling dated 19 th February, 2019, in which the trial court found that prayers (a), (b) and (c) of the plaint were res judicata as an earlier suit had been heard, and the issues in respect of those prayers were finally decided on merit. ELCLA E025/2024 JUDGEMENT 5|P a g e

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12. The trial court had found in the ruling dated 19 th February 2019 that prayer (d), the alternative prayer, was not res judicata. 13. Vide the said ruling, the trial court struck out the Plaintiff’s claim against the Defendant/Respondent regarding prayers (a), (b) and (c) of the plaint with costs of the Defendant (Respondent). There is no evidence that the said ruling was ever varied, set aside or challenged at all by way of appeal or review. 14. What therefore proceeded to hearing before the trial court, and which is the subject of the appeal herein, was the claim contained in the alternative prayer, which was a prayer for an order compelling the Respondent to refund the purchase price to the Appellant taking into account the current value of the land with interest. 15. The issue for determination in this appeal is therefore whether or not the Appellant proved that it was entitled to a refund of the purchase price as prayed and whether the trial court erred in dismissing the suit. 16. The evidence placed before the trial court by the Appellant comprised her own testimony and the exhibits that she produced. ELCLA E025/2024 JUDGEMENT 6|P a g e

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17. The record shows that the Appellant, who testified as PW1, stated that she was acting in the case as a Next Friend of Atianga Siala Gervase, her husband, who had become mentally ill. She adopted the contents of her witness statement dated 16 th December, 2023 as her evidence-in-chief. The statement is on page 111 of the record of appeal. She had stated in the said witness statement that the suit land belonged to the original Plaintiff, who bought it through an agreement entered into about 4th April, 1992 between the original Plaintiff and one Tobias Shikuku Onyango. That the land was sold at Kshs.25,000/although more money was added later and paid to the Respondent herein, who was a witness in the agreement. 18. She stated further that her husband, the original plaintiff, paid the whole amount by way of instalments as agreed in the agreement for sale by the vendor. That if the Respondent found it difficult to transfer the land to the Plaintiff, then the Respondent and her son should refund the whole purchase price, interest and damages. 19. The Appellant produced sale agreement dated 4 th April, 1992, acknowledgements of payments dated 7/12/1994, ELCLA E025/2024 JUDGEMENT 6/2/1995, 7|P a g e

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9/4/1992, 4/7/1992, 13/11/1994, 3/1/1994, 3/1/1997, 15/1/1997, 10/2/1997, 10/3/1997, 26/3/1997 and 19/4/1997 and demand letter as exhibits P.1 to P.3. 20. On cross-examination, the Appellant stated that she claimed Kshs. 967,680, which was the current value of the land. That the last instalment of the purchase price was paid in 1999. 21. The Respondent, who testified as DW1, denied the existence of the agreement and receipt of payment of the purchase price. 22. The burden to prove payment of the purchase price and entitlement to a refund therefore rests with the Appellant, under section 107 of the Evidence Act. It was submitted before the trial court on behalf of the Respondent that the claim for refund of the purchase price was statute-barred. That the agreement was alleged to have been entered into in the year 1992 and payment of the last instalment of the purchase price was made in 1997 as per the acknowledgement exhibited. 23. That under section 4(1) of the Limitation of Actions Act, actions founded on contract may not be brought after the end of 6 years from the date on which the cause of action accrued. That 6 years ELCLA E025/2024 JUDGEMENT 8|P a g e

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from 1997 elapsed in the year 2003; hence the claim for refund was time-barred. 24. The record shows that, taking the pleadings, evidence and submissions into consideration, the trial court found that the claim was time-barred. 25. I have read the submissions filed by both parties herein. I find that the facts of the case as stated in the evidence and the pleadings speak for themselves. Even if the year the Appellant insisted was the year when the last instalment was paid, that is to say the year 1999, was to be accepted as the year when the cause of action accrued to the Appellant, still the action would be timebarred, as 6 years from 1999 elapsed in 2005, yet the suit was filed in 2018. 26. The suit being time-barred was incompetent and fit for dismissal or being struck out. 27. There is a rationale for the law on limitation of actions. In the case of Gathoni –vs- Kenya Co-operative Creameries Ltd [1983] KLR 104, the court observed that “The law of limitation of actions is intended to protect defendants against unreasonable delay in bringing suits ELCLA E025/2024 JUDGEMENT 9|P a g e

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against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.’’ Similarly, in Rawal –vs- Rawal [1990] KLR 275, the court held that: “The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand and on the other hand protect a defendant after he had lost evidence for the defence from being disturbed after a long lapse of time.’’ 28. I find that the trial court did not err in finding that the claim for refund of the purchase price was time-barred. 29. For the foregoing reasons, the court finds that the grounds of appeal have not been proved. The appeal lacks merit and is hereby dismissed. Costs of the appeal are awarded to the Respondent. Orders accordingly. Judgment dated and signed at Kisumu and delivered this 1st day of October, 2026, virtually through Microsoft Teams Online Application. ELCLA E025/2024 JUDGEMENT 10 | P a g e

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E. ASATI, JUDGE. In the presence of: Atika: Court Assistant. Omondi T for the Appellant. No appearance for the Respondent. ELCLA E025/2024 JUDGEMENT 11 | P a g e

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