Barkonga & another (Suing as the Personal Representatives of the Estate of Gabriel Barkonga Cheptoo - Deceased) v Mayenze (Miscellaneous Civil Application E103 of 2025) [2026] KEHC 10186 (KLR) (9 July 2026) (Ruling)

Barkonga & another (Suing as the Personal Representatives of the Estate of Gabriel Barkonga Cheptoo - Deceased) v Mayenze (Miscellaneous Civil Application E103 of 2025) [2026] KEHC 10186 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10186 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Civil Application E103 of 2025 E Ominde, J July 9, 2026 Between Teresia Jemaiyo Barkonga 1st Applicant Robert Barkonga Chepkonga 2nd Applicant Suing as the Personal Representatives of the Estate of Gabriel Barkonga Cheptoo - Deceased and Wilson Kivairu Mayenze Respondent Ruling 1.By way of a Notice of Motion dated 14th April 2025, the Applicant seeks the following orders;1.This court's leave for extension of periods of limitation of an action to recover two (2) acres of land from the Respondent be and is hereby granted to the Applicants.2.This court's leave for extension of periods of limitation of an action founded on contract between the Respondent and the Applicants be and are hereby granted forthwith.3.This court’s leave for extension of periods of limitation to recover a debt from the Respondent be and is hereby granted forthwith.4.In the alternative, the Applicants/Applicants be and are hereby leave file an action to recover two (2) acres of land and/or action founded on contract and/or action to a recover Kshs 580,000 being a debt arising from and in respect of the agreement for sale made on 15/10/2005 between the Respondent (vendor) and Gabriel Barkonga Cheptoo deceased (purchaser) who died on 28/02/2022.5.Costs to the Applicants/Applicant. 2.The Application is premised on the grounds on the face of the Application and the averments of the Applicants in the supporting affidavit. The deponents averred that Gabriel Barkonga Cheptoo died on 28th February 2022 at M.T.R.H-Eldoret, annexing the certificate of death as “TJB-RBC1". 3.That in an agreement of sale made on 15th October 2005 Wilson Kivairu Mayenze, the vendor sold two (2) acres of all that parcel of land known as Uasin Gishu/Illula measuring 6.1 Ha to Gabriel Barkonga the purchaser at a consideration of Kshs 580,000/- which was paid in full, annexing the sale agreement as TJB-RBC 2. He urged that in a letter dated 25th March 2024 they wrote to Wilson Kivairu Mayenze who since failed, refused, neglected or ignored, annexing and marking the letter as “TJB-“RBC3". 4.The deponents averred that Gabriel Barkonga Cheptoo bought two acres of land and paid a total of Kshs 580, 000 for that land to Wilson Kivairu Mayenze. He took and enjoyed quite possession of the two (2) acres of that land on the ground after 15/10/2005 and from 2006 until his demise on 28/02/2022. Further, that he passed on before the process of transfer, registration and issuance of title in his favour was commenced by Wilson K. Mayenze. 5.They deposed that they are the personal representatives of the estate of Gabriel Barkonga Cheptoo with effect from 28/10/2024, annexing and marking as TJB RBC4 a Grant of Letters of Administration. They stated that the failure on the part of Wilson K. Mayenze to commence the process of giving the title of the two (2) acres of land out of all land known as Uasin Gishu/Illula measuring 6.1 Ha has made them institute these proceedings against him. 6.The deponents averred that the deceased entered into the agreement of sale on 15th October 2005 with Wilson K. Mayenze to whom the deceased paid a total of Kshs 580,000/- whose last payment was made in 2009 according to the available acknowledgement of money documents. They issued a demand notice letter and received no response from Wilson K. Mayenze. 7.Further, that they intend to institute proceedings arising from and in respect of Wilson K. Mayenze’s agreement of sale of the two acres of land at Illula with the deceased person. They additionally stated that they need to comply with the law including the law of contract, the Limitation of Actions Act (Cap 22) and the Land Control Act (Cap 302) in as for as any action arising from and in respect of the agreement of sale dated 15/10/2005 and the payments amounting to Kshs 580,000/- are concerned. They prayed the court allows the Application as prayed. 8.In response to the Application, the Respondent filed a replying affidavit dated 21st May 2025 where he deposed that the Application is fatally defective and an abuse of the court process and the same should be dismissed with costs. He urged that he never sold land to Gabriel Barkonga Cheptoo(Deceased) as alleged and the deceased has never been in possession of the piece of land in question. 9.He denied the allegations in the supporting affidavit and urged that in response to paragraphs12,13,14,15 and 16, time limitation has passed. That the land in question does not belong to the deceased, and he had no proprietary interest over the same. Therefore, the land in question is not part of the deceased’s estate. Counsel urged the court to strike out the Application as it is not merited. Applicants’ Submissions 10.On whether leave should be allowed, counsel urged that the principles governing an Application in respect of leave to file a suit out of time which were enunciated in the Supreme Court Case of County Executive of Kisumu vs. County Government of Kisumu and 8 Others (2017) eKLR [Civil Application No. 3 of 2016]. 11.Counsel urged that the Applicants' basis is that under the provisions of Sections 6, 7 and 8 of the Land Control Act, the area Land Control Board had not given its consent, the Application for consent of the Land Control Board was not made within six months, and the recovery of the consideration of Kshs 580,000/- as a debt from the Respondent was not made to the deceased’s estate after the agreement for sale made on 15th October 2005. He pointed out that under Section 4 of the Limitation of Actions Act (Cap 22) actions founded on contract and tort and certain other actions may not be brought after the end of six years from the date on which the cause of action accrued. 12.Counsel submitted that the sum of Kshs 580,000/- was paid to the Respondent pursuant to the agreement for sale and cited the findings in the case of Rawa vs. Rawa (1990) KLR, 275, and in Gandy v Caspar Air Charters Ltd [1956] 23 EACA, 139. He reproduced the provisions of Section 6 of the Land Control Act then submitted that the Applicants have discharged the burden of laying basis that they are deserving of the orders sought. 13.Counsel urged that pursuant to the agreement for sale, the purchaser was allowed to take possession of the two acres of land until 28th February 2022. He cited the case of Gabriel Mbui vs Mukindia Maranya (1993) eKLR on adverse possession arising out of a sale agreement and urged that the purchaser’s possession became adverse to the vendor once the purchase price was paid in full. He additionally cited the case of Peter Mbiri Michuki vs Samuel Mugo Michuki (2014) eKLR, urging that t Section 7 of the Limitation of Actions Act sets the time limit for adverse possession at 12 years. 14.That the Respondent’s title was extinguished by operation of Section 37 of the Limitation of Actions Act. The Respondent became a trustee holding the title to the suit property for the benefit of the Applicant. On the issue of costs, Counsel prayed that the Application be allowed with costs under Section 27 of the Civil Procedure Act. Respondents submissions 15.Learned counsel for the Respondent submitted that this court lacks the power and the discretion to extend the limitation period in actions founded on contract. He cited the provisions of Section 4(1) of the Limitation of Actions Act and urged that Sections 27 and 28 of the same act provides for the extension of time but specifically mentions the period being the one stated in Section 4(2). Further, that Section 7 of the act provides that an action to recover land may not be brought by a person at the end of twelve years from the date of which the right of action accrued. 16.Counsel urged that in Stephen Motari Isaboke vs Pariken Moto Prastun (2017) KEELC 1250 (KLR) the court pointed out that in an Application for extension of limitation period, the court is empowered to extend limitation period in cases of fraud or bonafide mistake and the court also has jurisdiction to extend the limitation period under Section 27 if the cause of action relates to negligence, nuisance or breach of duty resulting to personal injury. He additionally cited the decision of Mbaka vs Ntabaru (2023) KEELC 16587 (KLR) in this regard. 17.Counsel urged that the agreement for sale that the action arises from was made in October 2005 and 19 years have since elapsed and thus the period stated in section 4(1) of the limitation of actions act elapsed a long time ago. He additionally cited the case of Oketch and another both suing as representatives of the estate of Opiyo Nyaoke (Deceased) vs Okoth & Another (2022) KEELC 15380 (KLR) in support of this submission. 18.Counsel further submitted that the limitation period for contracts cannot be extended except where the case falls within the provisions of part 3 of the act but the Applicant has not proved they are protected by the said provisions by proving either the existence of a disability, acknowledgment of part payment, fraud, mistake or ignorance of material facts. 19.Counsel urged that in the event the court is to find that it has the power to extend the limitation of time, the Applicants have not given any sufficient reason for the delay in filing the suit. He urged that Section 3 of the Limitation of Actions Act provides that Sections 4 to 21 of the Act are subject to Part 3 of the Act which provides for extension of periods of limitation in the case of disability, acknowledgment of part payment, fraud, mistake or ignorance of material facts. 20.He reiterated that there was no acknowledgment of part payment, fraud, mistake or ignorance of material facts and that the deceased did not have any disability. He cited the holding in M’Ikiara M’Rinkanya & Another vs gilbert Kabeere M’Mbijiwe (2007) KECA 467 (KLR) and in Royal Media Services Ltd v Valentine Mugure Maina & Another (2016) KEHC 3644 (KLR) in support of his submissions. He maintained that the Applicants are relying on an agreement dated 15th October 2005 which by virtue of Section 4(1) of the Limitation of Actions Act cannot be used to bring up the suit. Counsel urged the court to dismiss the Application with costs to the Respondent. Analysis & Determination 21.In considering the pleadings and the submissions of the parties I find that the issue that arises for the court’s determination is as hereunder;Whether this Court has the requisite jurisdiction to grant prayers for the extension of limitation of time to enable the Applicants file an action for the recovery of the land in question. 22.The issue of the critical nature of the jurisdiction of a court in the hearing and determination of any cause before it was outlined in the case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Limited (1989) KLR 1. Therein, the court stated thus;“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs its tool in respect of a matter before it the moment it holds the opinion that it is without jurisdiction.” 23.On the acquisition of jurisdiction by a court, The Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR hel as follows;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, 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 by law.….the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. 24.The issue of the need for courts to operate strictly within their constitutional and statutory limits and cannot in this regard acquire and/or abrogate to themselves jurisdiction by and of themselves was discussed extensively in the case of In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. It was therein held thus;It… (a court that is) …cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 25.The Constitutional provisions that determines the jurisdiction of the three courts of equal status to the High Court, the Environment and Land Court and the Employment and Labour Relations Court is Article 162(2)(b) of the Constitution. This provision establishes the Environment and Land Court to hear and determine disputes relating to the environment, use, occupation, and title to land and at Article 165(5)(b) thereof explicitly states that the High Court shall not have jurisdiction over causes falling within the jurisdiction of the courts contemplated in Article 162(2) of the Constitution with the Environment and Land Court being one such court. 26.In line with this this constitutional provision, the Environment and Land Court was subsequently established with the enactment of the Environment and Land Court Act of 2011 to define the jurisdiction of the court and also guide its operations. Under Section 13(2)(e) of Act the court is stated to have jurisdiction over disputes relating to land, including leases, tenancies, and contracts involving land. Further Section 150 of the Land Act, 2012, reinforces the Environment and Land Court’s jurisdiction over land-related disputes. 27.In considering the issue that the court has raised as being for determination in light of the constitutional and statutory provisions herein above referred to as well as the case law cited and relied upon by the court, it is my considered opinion, that in whichever way the Applicants have framed their Application, whether it be that they seek to enforce a valid contract or whether it be that they seek to recover a debt, the bottom line is that the substratum of their cause of action either way is that it is a contract over the sale of land. 28.Indeed, the orders that the Applicants seek in prayer 1) of the said Application is very explicit. They seek this court's leave for extension of the period of limitation of an action to recover two (2) acres of land from the Respondent. 29.This being the case then, it is clear that by dint of Article 165(5) of the Constitution as has been herein summarised, this court does not have jurisdiction over this matter for reasons that it is a dispute over the sale of land. In this regard, the court now hereby finds that the Application is misconceived and lacks merit and the same is accordingly dismissed with costs to the Respondent. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 9TH JULY 2026E. OMINDEJUDGE