Carolyne Awino Aluoch & Another v Grace Anyango Owiti & Another

The application is expressed to be brought under Articles 40, 48 and 50 of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act, Sections 27, 28, 29 and 30 of the Limitation of Actions Act (Cap. 22), Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law. 2. The factual foundation of the application may be summarised as follow; On 19th September 2008 the Applicants entered into a Sale Agreement with the Respondent for the purchase of a portion of land which later became known as KISUMU/KADONGO/6686. They paid the full purchase price, took immediate possession, fenced the property and constructed a latrine. At the time the mother parcel (said to have been KISUMU/KADONGO/3995) was still under adjudication, so formal transfer could not be effected. The Applicants aver that they remained in possession while awaiting completion of the adjudication process and that the Respondent gave repeated assurances that transfer would follow once adjudication and subdivision were complete. RULING MISC. E053 OF 2026 2

page 2 of 13

3. They further depose that in 2025 they discovered that the Respondent had caused the resultant parcel to be registered solely in her name, had re-entered the land, interfered with their developments, sold materials therefrom and was dealing with the property in disregard of their asserted equitable and beneficial interest. They lodged a caution on 23rd October 2025, reported the matter to the police, attended the Land Control Board (which the Respondent failed to attend) and made attempts at amicable resolution through the local administration. They thereafter filed Maseno MCELC No. 038 of 2025, which was struck out solely on the ground that it was statute-barred. They now seek leave of this Court to institute the intended suit out of time, contending that the delay was occasioned by the Respondent’s assurances, concealment of material facts and the adjudication process, and that the intended claim raises serious and arguable issues of enforcement of the sale agreement, beneficial ownership, trust and proprietary rights. RULING MISC. E053 OF 2026 3

page 3 of 13

4. The Respondent opposed the application by Grounds of Opposition dated 15th September 2026. The grounds are, in essence: (i) Once a claim is statute-barred the Court has no discretion to extend the limitation period unless the statute itself expressly provides for such extension; (ii) The Limitation of Actions Act, which prescribes a limitation period of twelve years for a claim for recovery of land, does not vest in the courts discretionary jurisdiction to enlarge that period; (iii) An enlargement order cannot breathe life into a stale claim; the Applicants’ claim was and remains statutebarred and no court has jurisdiction to entertain it; and (iv) The application is frivolous, vexatious and an abuse of the process of the Court. The Respondent prayed that the application be dismissed with costs. The Applicants’ submissions 5. Both parties filed written submissions. The Applicants’ submissions dated 20th September 2026 contend that this RULING MISC. E053 OF 2026 4

page 4 of 13

Court has jurisdiction to entertain the application for leave; that the Respondent’s Grounds of Opposition are bare assertions of law unsupported by evidence and therefore insufficient to controvert the unrebutted sworn facts; that the application is neither frivolous nor an abuse of process; that the Respondent has been properly sued; and that the Applicants have laid a sufficient foundation for the exercise of discretion, relying inter alia on the principles in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR and the Court of Appeal decision in Cherwon v Kisekem Limited & 3 Others [2024] KECA 482 (KLR). They further invoke Section 26 of the Limitation of Actions Act on the basis of alleged fraud and concealment discovered only in 2025. The Respondent’s submissions 6. The Respondent’s submissions reiterate that Section 7 of the Limitation of Actions Act bars an action to recover land after twelve years from the accrual of the right of action; that Sections 27 and 28 of the Act (under which the application is principally brought) apply only to actions RULING MISC. E053 OF 2026 5

page 5 of 13

founded on tort for negligence, nuisance or breach of duty where the damages claimed consist of or include damages in respect of personal injuries; and that the Court has no jurisdiction to enlarge time in respect of a claim for recovery of land or for enforcement of a contract. Reliance is placed on Mary Osundwa v Nzoia Sugar Company Limited [2002] eKLR, Divecon v Samani [1995–1998] 1 EA 48, Pius Kimaiyo Langat v The Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR) and the recent decision in M’Rinkanya v Mbabu-Murombi [2025] KEELC 7533 (KLR). Analysis and determination 7. I have carefully considered the Notice of Motion, the Supporting Affidavit, the Grounds of Opposition and the written submissions of both parties. The issues that fall for determination are: (i) Whether this Court has jurisdiction to grant leave to institute the intended suit RULING MISC. E053 OF 2026 6

page 6 of 13

out of time under Sections 27 and 28 of the Limitation of Actions Act (or under the other provisions cited); (ii) Whether the application is otherwise competent or discloses any basis for the relief sought; and (iii) What orders as to costs should follow. Issue No. (i): Whether this Court has jurisdiction to grant leave to institute the intended suit out of time 8. Jurisdiction is everything, as Nyarangi JA observed in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. As the Supreme Court stated in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, 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. 9. Section 7 of the Limitation of Actions Act provides: “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, RULING MISC. E053 OF 2026 7

page 7 of 13

if it first accrued to some person through whom he claims, to that person.” The intended claim, as described in the application and Supporting Affidavit, is one for enforcement of a 2008 sale agreement, declaration of beneficial/equitable ownership, trust and recovery or protection of proprietary interest in land. It is, in substance, an action for the recovery of land (or rights thereto). The ordinary limitation period is therefore twelve years from the date the right of action accrued. 10. The Applicants expressly invoke Sections 27, 28, 29 and 30 of the Limitation of Actions Act. Section 27 provides for extension of the limitation period in cases of ignorance of material facts, but only in respect of actions founded on tort for damages for negligence, nuisance or breach of duty where the damages claimed consist of or include damages in respect of personal injuries. Section 28 prescribes the procedure for obtaining leave of the court for the purposes of Section 27. 11. The Court of Appeal has repeatedly and authoritatively held that Section 27 does not confer jurisdiction to extend time for any other causes of action. In Mary Osundwa v RULING MISC. E053 OF 2026 8

page 8 of 13

Nzoia Sugar Company Limited (Supra) [2002] eKLR the Court stated: “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 plaintiff as a result of the tort. The section does not give jurisdiction to the court to extend time for filing suit in cases involving contract or any other causes of action other than those in tort.” The same principle was reaffirmed in Pius Kimaiyo Langat v The Co-operative Bank of Kenya Ltd (Supra) [2017] KECA 152 (KLR) and in numerous subsequent decisions. 12. The Environment and Land Court has consistently applied the same principle to claims for recovery of land. In M’Rinkanya v Mbabu-Murombi (Supra) [2025] KEELC 7533 (KLR) the Court held that the Limitation of Actions Act, which prescribes a twelve-year limitation period for recovery of land, does not vest in the courts discretionary jurisdiction to enlarge that period; an enlargement order issued without jurisdiction cannot breathe life into a stale claim. Similar holdings appear in other recent decisions of this Court. RULING MISC. E053 OF 2026 9

page 9 of 13

13. The Applicants’ reliance on Cherwon v Kisekem Limited & 3 Others (Supra) [2024] KECA 482 (KLR) does not assist them. While that decision acknowledged that limitation under Section 7 goes to jurisdiction and referred to the possibility of extension in certain circumstances, the consistent and binding interpretation of Sections 27 and 28 is that those provisions are confined to the narrow class of personal-injury tort claims. They do not apply to claims for recovery of land or for enforcement of a sale agreement. 14. Section 26 of the Limitation of Actions Act (postponement of limitation in cases of fraud, concealment of a right of action, or mistake) is conceptually distinct. It does not require, and does not authorise, a pre-suit application for leave under Section 28. Where a plaintiff relies on Section 26, the proper course is to file the substantive suit pleading the fraud or concealment and the date of discovery (or the date when discovery could with reasonable diligence have been made). Limitation then becomes an issue for determination on the pleadings, by way of preliminary objection or at trial. Applications RULING MISC. E053 OF 2026 10

page 10 of 13

purporting to seek leave under Sections 22 or 26 have been held to be incompetent. 15. The present application is framed under Sections 27 to 30 and seeks leave to file “out of time.” It is not a substantive suit in which Section 26 is pleaded as an answer to a limitation defence. Consequently, the Court has no jurisdiction under the provisions invoked to grant the leave sought. Procedure Act The residual (Sections 1A, provisions of the Civil 1B 3A) and the and constitutional articles cited cannot confer a jurisdiction that the Limitation of Actions Act has withheld. The first issue is accordingly answered in the negative. Issue No. (ii): Whether the application is otherwise competent or discloses any basis for the relief sought 16. Even if the Court were to consider the application on its merits as an invocation of equitable discretion outside the statute, the outcome would be the same. The right of action in respect of the 2008 agreement accrued, at the latest, upon the Respondent’s alleged failure to transfer after adjudication (or upon registration of the resultant title in her sole name). The Applicants’ own evidence RULING MISC. E053 OF 2026 11

page 11 of 13

shows that they became aware of the registration and the Respondent’s dealings in 2025 and promptly filed a suit which was struck out on limitation grounds. An application for leave under the wrong statutory provisions cannot revive a claim that the statute has barred. 17. The Grounds of Opposition, while concise, correctly identify the jurisdictional bar. The absence of a replying affidavit does not cure the fundamental want of jurisdiction. The Notice of Motion dated 14th August 2026 is therefore incompetent. Issue No. (iii): What orders as to costs should follow 18. Costs follow the event under Section 27 of the Civil Procedure Act, and no reason has been shown to depart from that general rule. The Applicants shall bear the Respondent’s costs of the application. RULING MISC. E053 OF 2026 12

page 12 of 13

Disposition 19. In the end, and flowing from the findings above, the Court makes the following orders: i. The Notice of Motion dated 14th August 2026 is hereby dismissed. ii. The Applicants shall bear the Respondent’s costs of the application. iii. This file is marked as closed. DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF OCTOBER, 2026. E. K. WABWOTO JUDGE In the presence of:Ms. Omwenga for the Applicants. Ms. Macgot for the Respondent. N/A for the Interested Party. Court Assistant: Joanne Omondi. RULING MISC. E053 OF 2026 13

page 13 of 13