Impulse Developers Company Limited v Charles Waweru Gatonye T/A Waweru Gatonye & Company Advocates & 4 others

pending completion of the transaction. The transaction subsequently failed, and the Plaintiff now seeks recovery of the deposit. 5. The 1st Defendant submits that he was not a party to the agreement and that, in any case, the suit is time-barred since the cause of action accrued upon failure by the Plaintiff to complete the transaction within the contractual completion period in late 2005 or early 2006. 6. The Plaintiff contends that the 1st Defendant was a stakeholder and is therefore a necessary party to the proceedings. It also submits that the suit is not statute barred as the cause of action accrued upon nullification of the transaction by the High Court in Succession Cause No 527 of 1981 on 25th September 2015. 7. The 3rd, 4th and 5th Defendants filed submissions in support of the 1st Defendant’s application. The 4th Defendant’s (Margaret Njeri Mbiyu) submissions are dated 10 November 2025; the 5th Defendant’s (Eddah Njiru Mbiyu) submissions are dated 18 February 2026. Lennah Wanjiku Koinange Alias Lennah Catherine Waiganjo, the 3rd Defendant, filed submissions dated 16th December 2025. Analysis and Determination 8. I have carefully considered the pleadings and submissions on record. Two issues fall for determination: i. Whether the suit discloses a reasonable cause of action against the 1st Defendant. ii. Whether the suit is statute-barred. Whether the suit discloses a reasonable cause of action against the 1st Defendant. 9. The 1st Defendant seeks to strike out the suit on the ground that it discloses no reasonable cause of action against him. The basis of the application is that he was not a party to the agreement for sale dated 26th October 2005. 10. The Plaintiff’s case, however, is that the 1st Defendant received the sum of Kshs. 21,480,000.00 as a stakeholder pending completion of the transaction, and that following failure of the transaction, he became liable to account for and refund the said sum. 11. The law is settled that an application founded on the ground that a pleading discloses no reasonable cause of action cannot be supported by affidavit evidence. In Crescent Construction Co. Ltd v Delphis Bank Ltd [2007] eKLR, the Court of Appeal reiterated that no evidence is admissible in such an application. Citing the case of Jevaj Shariff & Co. v. Chotail Pharmacy Stores (1960) EA 374, the Court of Appeal stressed that: “ The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part of it, and upon the assumption that any express or implied allegations of fact in it are true.” 12. At this stage, the Court is not required to determine the merits of the Plaintiff’s claim. The question is whether, on the face of the pleadings, the claim is so hopeless that it plainly and obviously discloses no reasonable cause of action. 13. From the Amended Originating Summons, it is evident that the Plaintiff’s claim against the 1st Defendant cannot be said to be plainly unsustainable. Whether the 1st Defendant held the deposit as a stakeholder, whether the deposit was lawfully forfeited, and whether he remains liable to refund the same are matters that require evidence and determination at trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8314/eng@2026-06-11 2

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14. In the premises, I therefore decline to strike out the suit on the ground that it discloses no reasonable cause of action against the 1st Defendant. Whether the Plaintiff ’s claim is statute-barred 15. The 1st Defendant, supported by the 3rd, 4th and 5th Defendants, contended that the Plaintiff’s suit is statute-barred by virtue of section 4(1)(a) of the Limitation of Actions Act, which provides that actions founded on contract may not be brought after the expiry of six (6) years from the date the cause of action accrued. 16. According to the Defendants, the cause of action accrued upon the Plaintiff’s failure to complete the transaction within the contractual completion period in 2005 or, at the latest, upon issuance of the completion notice in January 2006. They therefore argue that the suit filed in 2019 was filed outside the statutory period. 17. The Plaintiff, on the other hand, argues that the present claim is for refund of monies held by the 1st Defendant as a stakeholder and that the cause of action crystallized upon nullification of the transaction by the High Court in Succession Cause No. 527 of 1981 on 25th September 2015. 18. It is apparent from the parties’ respective positions that the issue of limitation turns on the point at which the cause of action accrued. That issue is contested. 19. In determining whether the claim is statute-barred, the Court would necessarily have to interrogate the terms of the agreement for sale, the completion obligations of the parties, the effect of the Law Society Conditions of Sale incorporated into the agreement, the stakeholder obligations of the 1st Defendant and the legal effect of the proceedings and judgment in Succession Cause No. 527 of 1981. These matters are not plain or self-evident from the pleadings alone. They require factual inquiry and evaluation of evidence. 20. In D.T. Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1, the Court held that a suit should not be summarily dismissed unless it is plainly and obviously unsustainable. 21. The upshot of the foregoing is that I am not satisfied that the Plaintiff’s suit is plainly and obviously statute-barred so as to warrant striking it out at this interlocutory stage. The issue is best left for determination upon full hearing and evaluation of evidence. 22. Accordingly, the Notice of Motion dated 23rd May 2025 is therefore dismissed with costs in the cause. 23. The suit shall proceed for hearing on a priority basis. 24. It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2026 HON. MR. JUSTICE MOSES ADO JUDGE OF THE HIGH COURT In the Presence of: Moses C/A Ashioya h/b for Havi SC for the Plaintiff Ms. Osongo h/b for Kibe Mungai for the 1st Defendant Ouma for the 3rd Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8314/eng@2026-06-11 3

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Mohammed Billow for the 4th Defendant Nyambua h/b for Waitere for the 5th Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8314/eng@2026-06-11 4

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