https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4980

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC LAND APPEAL CASE NO. E026 OF 2025** **BENJAMIN MURERWA MUTHAMIA........................... APPELLANT** **=VERSUS=** **JANET MWITU (*Sued in her capacity as the*** ***Legal Representative of the estate of the late*** ***MARTIN MIRITI MUKIRA - DECEASED)*....................RESPONDENT** ***(An Appeal against the Judgment of the Senior Principal Magistrate Court at Githongo [Hon E N Muriuki - SPM] dated 12/3/2025 in Githongo SPMC E & L Case No E002 of 2023)*** **JUDGMENT** **Introduction** 1. This appeal challenges the Judgment of the Senior Principal Magistrate Court at Githongo [**Hon E N Muriuki – SPM**] rendered on 12/3/2025 in **Githongo SPMC E & L Case No E002 of 2023**. **Benjamin Murerwa Muthamia** [*the appellant*] was the plaintiff in the case. Janet Mwitu was sued in her capacity as the personal representative of the estate of the late **Martin Miriti Mukira** [*hereinafter referred to as* ***“the deceased”*** *or* ***“the late Mukira”***]. The key issues that arose for determination in the suit were: (i) Whether the exparte order procured by the appellant enlarging time for filing the suit in the trial court validated the appellant’s claim; (ii) Whether the appellant’s claim for an order decreeing payment of the current monetary market value of the suit land was statute-barred as at the time of filing the suit in the trial court; (iii) Whether the alternative claim of an order of specific performance of the agreement dated 30/7/2008 was statute-barred as at the time of filing the suit in the trial court; and (iv) Whether the appellant proved existence of a valid and enforceable sale agreement between him and the late Mukira, pursuant to which the late Mukira sold to him one (1) acre that was to be excised out of land parcel number Abothuguchi/U-Kaongo/1380. Invariably, these are the key issues that fall for determination in this first appeal. Before I analyse and dispose the issues, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ submissions in the appeal. **Background** 1. The respondent in this appeal is the widow of the **late Mukira.** The late Mukira died on 1/12/2008. More than 14 years after Mukira’s demise, the appellant filed an ex-parte miscellaneous application in the Chief Magistrate Court at Meru, to wit, **Meru CMC Miscellaneous Application No E008 of 2023**, seeking an order enlarging the time within which to institute a suit against the estate of the late Mukira. Vide an ex-parte order made on **6/4/2023** by **Hon T M Mwangi - SPM**, the appellant was granted an extension of 30 days from 6/4/2023 within which to institute a suit against the estate of the late Mukira. 2. On or about 5/5/2023, vide a plaint dated 3/5/2023, the appellant filed **Githongo SPMC E & L Case No E002 of 2023** against the respondent, suing the respondent in her capacity as the personal representative of the late Martin Miriti Mukira. He prayed for an order decreeing the respondent to pay him the current monetary market value of the suit land [*i.e one acre out of Abothuguchi/U-Kaongo/1380*]. As an alternative relief, he prayed for an order of specific performance of the agreement dated 30/7/2008. 3. The case of the appellant was that on 30/7/2008, him and the late Mukira entered into an agreement for sale of land, pursuant to which the late Mukira sold to him one (1) acre that was to be excised from parcel number **Abothuguchi/U-Kaongo/1380**. The agreed purchase price for the one(1) acre was Kshs 42,000. He paid a sum of Kshs 17,000 at the time of signing the agreement and subsequently paid a further sum of Kshs 17,700, leaving a balance of Kshs.7,300 that was to be paid after transfer of the sold land into his name. Unfortunately, the late Mukira died on 1/12/2008 before excising and transferring the one (1) acre. Immediately Mukira died, the respondent forcefully evicted him from the suit land and subsequently carried out succession relating to the estate of the late Mukira. The appellant relied on the ex-parte time-enlargement order which he had procured and contended that his claim had been validated by the order. 4. The respondent contested the suit through a defence dated 16/6/2023. Her case was that the late Mukira never sold to the appellant one (1) acre out of **Abothuguchi/U-Kaongo/1380** in **2008**. She contended that the only sale agreement between the appellant and the late Mukira was in **1995** and related to one acre that was duly conveyed and registered in the name of the appellant as parcel number **Abothuguchi/U-Kaongo/1379**, adding that the appellant was in possession of the said land [*Abothuguchi/U-Kaongo/1379*). She stated that parcel number Abothuguchi/U-Kaongo/1380 was their matrimonial home and there was no way a portion of it could have been sold to the appellant without her consent and knowledge. 5. The respondent averred that the appellant’s claim was statute-barred and pointed out that the exparte time-enlargement order which the appellant was relying on was irregular, invalid and inapplicable to the appellant’s claim which was anchored on an alleged contract. She further contended that the appellant’s claim was *res judicata* because the appellant had litigated the claim in **Meru High Court Succession Cause No 619 of 2015**. It was the case of the respondent that the reliefs sought by the appellant were not available to him. She urged the trial court to dismiss the suit with costs. 6. During trial, the appellant testified as PW1 and called two other witnesses. He produced: (i) a sale agreement dated 30/7/2008; (ii) copy of a ruling dated 17/12/2021 in Meru High Court Succession Cause No 619 of 2015 relating to the estate of the late Martin Miriti Mukira; and (iii) copy of the time-enlargement order dated 25/4/2023 issued in Meru CMC Miscellaneous Application No E008 of 2008. The respondent testified as DW1 and reiterated her case as outlined above. 7. The trial court subsequently rendered the impugned Judgment in which it held that “the issue” in the suit related to the agreement dated 30/7/2008. Observing that the time-enlarging order was granted ex-parte, the court held that the respondent was entitled to raise the issue of limitation of action during trial. Citing the Limitation of Actions Act, the trial court found that the appellant’s claim was statute-barred because it was filed “16 years after the cause of action accrued”. The trial court dismissed the appellant’s suit with no order as to costs. **Appeal** 1. Aggrieved by the Judgment and decree of the trial court, the appellant brought this appeal, advancing the following seven verbatim grounds:- 2. ***That the Honourable Learned Trial Magistrate erred in law and fact in heeding the respondent’s invitation to sit on appeal of an order made by a court of concurrent jurisdiction.*** 3. ***That the Honourable Learned Trial Magistrate erred in law in misconstruing the provisions of the Limitations of Actions Act, Cap 22 Laws of Kenya and which led him to a wrong decision.*** 4. ***That the Honourable Trial Magistrate erred in law and fact in failing to analyse the appellant’s evidence and submissions thereby ending up with a Judgment that was/is manifestly prejudicial to the appellant.*** 5. ***That the Honourable Learned Trial Magistrate erred in law and fact in rendering a judgment that contravenes in all forms the clear mandatory provisions of Order 21 rule 4 of the Civil Procedure Rules 2010.*** 6. ***That the Honourable Learned Trial Magistrate erred in law and fact in selectively basing his judgment on the alternative prayer in the plaint in lieu of the main prayer, thereby manifestly prejudicing the appellant.*** 7. ***That the Honourable Learned Trial Magistrate erred in law and fact in failing to invoke the provisions of Sections 1A and 1B of the Civil Procedure Act, Cap 21 Laws of Kenya, thereby prejudicing and denying the appellant substantive justice.*** 8. ***That the Honourable Learned Trial Magistrate erred in law and fact in delivering a judgment that was/is totally against the weight of evidence and the law.*** 9. The appellant prayed for: (i) an order allowing the appeal and setting aside the Judgment of the trial court dated 12/3/2025 in **Githongo E & L Case No. E002 of 2023**; and (ii) an order awarding him costs of the suit in the lower court. **Appellants’ Submissions** 1. The appeal was canvassed through written submissions dated 17/3/2026, filed by ***M/s Ndubi Ondubi & Associates***. Counsel for the appellant submitted that leave to file an appeal out of time was granted by Hon T Mwangi - SPM in **Meru CMC Miscellaneous Application No E008 of 2023** and argued that, by holding that the appellant’s suit was statute-barred, the trial court literally purported to sit as an appellate court against the decision of Hon T. Mwangi . Counsel argued that the trial court had no jurisdiction to revisit the issue of limitation of time because Hon T M Mwangi had already enlarged the limitation period. 2. Counsel further faulted the trial court for failing to comply with the requirements of **Order 21 rule 4** of the **Civil Procedure Rules** which obligated the trial magistrate to outline concise statements of the parties’ cases; the points/issues for determination; the decisions on the issues; and the reasons for the decisions. Counsel contended that the impugned Judgment did not align with the above requirements of the law. 3. Counsel also faulted the trial court for basing its decision on the alternative prayer [the plea for an order of specific performance] instead of focusing on the main prayer which was a plea for payment of the current monetary market value of the suit land. Counsel argued that had the trial court taken into account the main prayer, its final determination would have been different. Counsel added that the suit before the trial court was “a claim for land”, hence the trial court should have made a finding that the appellant’s suit was filed within time. 4. Lastly, counsel for the appellant faulted the trial court for failing to analyse the appellant’s evidence and submissions. Counsel faulted the trial court for writing a one-page judgment in which it literally jumped to a conclusion without considering both the evidence on record and the appellant’s submissions. Counsel pointed out that the trial court failed to take into account the ruling in Meru High Court Succession Cause No 619 of 2015. Counsel urged the court to allow the appeal. **Respondent’s Submissions** 1. The respondent opposed the appeal through written submissions dated 25/3/2026, filed by ***M/s Gikunda Anampiu & Co Advocates***. Citing **Section 4(1)** of the **Limitation of Actions Act**, counsel submitted that the appellant’s claim was based on contract and the law did not permit enlargement of the limitation period relating to claims based on contract. Counsel cited the Court of Appeal decisions in: (i) ***Divecon Limited v Samari (1995 – 1998) I & A 48*** and (ii) ***Mary Osundwa v Nzoia Sugar Company Limited (2002) eKLR.*** 2. Citing Section 27 of the Limitation of Actions Act, counsel argued that the Magistrate Court which purported to give ex-parte orders enlarging time had no jurisdiction to do so because the appellant’s claim did not fall within the ambit of Section 27 (1) of the Limitation of Actions Act. Relying on the pronouncement of ***Lord Denning*** in ***Macfoy v United Africa Co Ltd (1961) 3 AG ER 1169***, counsel submitted that the order which purported to enlarge the limitation period was illegal and a nullity. Counsel urged the court to reject and dismiss the appeal with costs. **Analysis and Determination** 1. The Court has read and considered the entire original record of the trial court; the record filed in this appeal; the grounds of appeal; and the parties’ submissions in the appeal. The court has also considered the legal frameworks and the jurisprudence relevant to the issues that fall for determination in the appeal. As pointed out in the introduction part of this Judgment, the key issues that fall for determination in the appeal are: (i) Whether the ex-parte time-enlargement order procured by the appellant, enlarging the limitation period for bringing his claim, validated the claim; (ii) Whether the claim for an order decreeing payment of the current monetary market value of the suit land was statute-barred as at the time of filing the suit in the trial court; (iii) Whether the alternative claim of an order of specific performance of the land sale agreement dated 30/7/2008 was statute-barred as at the time of filing the suit in the trial court; and (iv) Whether the appellant proved existence of a valid and enforceable sale agreement between him and the late Mukira pursuant to which the late Mukira sold to him one (1) acre that was to be excised out of land parcel number Abothuguchi/U-Kaongo/1380. Issue Nos *(i), (ii)* and *(iii)* are intertwined and speak to the same theme. Consequently, they will be analysed and disposed contemporaneously. 2. Did the ex-parte time-enlargement order which the appellant procured from a magistrate court validate his claim? Did it validate the claim for payment of the current market value of the suit land? Did it validate the alternative prayer of an order of specific performance? The two limbs of the appellant’s claim were anchored on a land sale contract contained in an agreement dated 30/7/2008. The appellant alleged that he entered into the said agreement with the late Mukira. The estate of the late Mukira denied the allegation and contested the appellant’s claim. The estate further contended that the appellant’s suit was statute-barred under **Section 4** of the **Limitation of Actions Act.** 3. The general limitation period for actions founded on contracts is contained in **Section 4(1)** of the **Limitation of Actions Act** which provide as follows: ***“4. (1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued—*** ***(a) actions founded on contract;*** ***(b) actions to enforce a recognizance;*** ***(c) actions to enforce an award;*** ***(d) actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;*** ***(e) actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.”*** 1. The limitation period provided under the above framework is six (6) years. The court is also alive to the fact that where the claim seeks recovery of land, **Section 7** of the **Limitation of Actions Act** provides for a period of twelve years as provided in the following framework:- ***“7. 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, if it first accrued to some person through whom he claims, to that person.”*** 1. It is clear from the record of appeal that the appellant was aware that his claim was stale. It was for this reason that the appellant approached the Chief Magistrate Court at Meru for an order enlarging the time for lodging his stale claim. He successfully obtained an ex-parte order enlarging the prescribed limitation period. The key question that arose for determination by the trial court was whether the ex-parte order breathed life into the stale claim. The respondent contends that the ex-parte time-enlargement order was a nullity because the Magistrate Court which purported to enlarge time had no jurisdiction to do so. On his part, the appellant argues that once the Magistrate Court at Meru issued the ex-parte time-enlargement order, the trial court at Githongo had no jurisdiction to revisit the issue. 2. There abound binding jurisprudence to the effect that where a time-enlargement order is obtained ex-parte, a defendant is entitled to plead limitation and canvass the issue in the subsequently filed suit during trial. In ***Mary Wambui Kabugu vs. Kenya Bus Services Ltd. Civil Appeal No. 195 of 1995,*** the Court of Appeal spoke to the subject as follows:- ***“By virtue of section 28(1) of the Limitation of Actions Act, Cap 22, Laws of Kenya (the Act) an application for leave of the superior court (for that matter of the subordinate court) has to be made ex parte. The proposed defendant is not a party to that application. Indeed, he cannot be for the simple reason that section 28(1) mandated that such application “shall be made ex parte. This situation is reinforced by the provision of Order 36 rule 3C of the Civil Procedure Rules... In a situation such as outlined above the defendant only becomes aware of the order extending time when he is served with the summons, plaint and the order extending time.*** ***There is no provision in the Act itself to enable the defendant to have the order extending time set aside. In the court’s view, the only time when such a defendant can challenge the order granting extension of time is at the time of the trial, either on facts brought out at the trial, or by way of arguments at the trial if circumstances and facts allow such arguments at the trial, that is to say if there is a dispute as to facts. It will be up to the judge presiding at the trial to decide the issue but not as a preliminary point.”*** 1. In ***Oruta & another v Nyamato [1988] KECA 142 (KLR),*** the Court of Appeal stated as follows:- ***“The respondent having obtained leave to file action as required by the Law, that order can only be queried at the trial but not by application to discharge it otherwise the provision of the Act in providing for obtaining an order ex-parte will be rendered nugatory.”*** 1. It clearly emerges from the above jurisprudence that the time-enlargement order having been issued in exparte proceedings, the respondent was entitled to plead the defence of limitation of action and ventilate it in the substantive suit during trial. Consequently, the issue of limitation having been pleaded at paragraph 9 of the respondent’s defence, the respondent was entitled to canvass it and the trial court was obligated to consider and dispose it. This court does not agree with the appellant’s view that once he obtained the ex-parte time-enlargement order, the respondent was precluded against being heard on the issue. The view of this court is that, the trial court properly considered and disposed the issue of limitation of action. 2. Did the ex-parte order validate the appellant’s stale claim? The Limitation of Actions Act grants to courts power to enlarge time only in specific circumstances. The claims and the circumstances are specified in **Section 27** of the Act which provides as follows:- ***“27(1)*** [***Section 4***](https://kenyalaw.org/akn/ke/act/1968/21/eng%402022-12-31#part_II__sec_4)***(2) does not afford a defence to an action founded on tort where—*** ***(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and*** ***(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and*** ***(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and*** ***(d)the requirements of subsection (2) are fulfilled in relation to the cause of action.*** ***(2) The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which—*** ***(a)either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and*** ***(b)in either case, was a date not earlier than one year before the date on which the action was brought.*** ***(3) This section does not exclude or otherwise affect—*** ***(a) any defence which, in an action to which this section applies, may be available by virtue of any written law other than*** [***section 4***](https://kenyalaw.org/akn/ke/act/1968/21/eng%402022-12-31#part_II__sec_4)***(2) of this Act (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; or*** ***(b) the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.”*** 1. The appellant’s primary claim did not consist of or include damages relating to personal injuries of a person. It was purely a claim for the monetary value of land. The alternative plea was a claim for an order of specific performance of a contract. The two limbs of the appellant’s claim were clearly outside the purview of the claims contemplated under **Section 27** of the **Limitation of Actions Act**. 2. The prevailing law on enlargement of time is that where a limitation period is prescribed by statute and the statute does not grant the courts powers to enlarge the limitation period, the courts do not have jurisdiction to enlarge the prescribed limitation period. Secondly, the Limitation of Actions Act does not grant courts powers to enlarge the prescribed limitation period relating to a claim anchored on contract. 3. In ***Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR,*** the Supreme Court of Kenya stated 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.”*** 1. In ***Divecon v Samani (1995-1998) EA 48,*** the Court of Appeal outlined the law on the subject of enlargement of time in a claim anchored on contract 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 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***](https://kenyalaw.org/akn/ke/act/1968/21)***(Chapter 22) suggests a discretion that can be invoked?”*** 1. In ***Macfoy v United Africa Ltd [1961] 3 ALL E.R. 1169 Lord Denning*** stated as follows:- ***“If an act is void then it is in law a nullity and not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”*** 1. In ***Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) vs Rosaline Njeri Macharia & Another [2016] eKLR,*** the Court of Appeal stated: ***52. “As to whether the suit was statute-barred under the Limitation of Actions Act, the suit was filed on 19th July 2007. By dint of paragraphs 24, 25, 26, 28, 29 and 30 of the plaint, the cause of action was pleaded to have accrued on 27th July 1999 when the alleged breach of contract occurred. As the breach was of a contract relating to lending of money whose security instrument is contested, section 4(1)(a) of the Limitations of Actions Act, Cap 22 requires 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. In this appeal, the “suit” having been instituted in 2007 when the accrual of the cause of action was in July 1999, it was clearly filed outside the six-year period and consequently was time-barred, if indeed it was a suit."*** 1. In ***Mary Osundwa v Sugar Company Limited [2002] KECA 203 (KLR),*** the Court of Appeal stated as follows:- ***“Section 27 (1) of the Limitation of Actions Act, provides and we quote: "Section 4 (2) does not afford a defence to an action founded on TORT where:*** ***(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of written law independently of a contract or written law); and*** ***(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and*** ***(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and*** ***(d)the requirements of subsection (2) are fulfilled in relation to the cause of action."*** ***This section clearly lays down the circumstances in which the court would have jurisdiction to extend time. The 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.*** 1. Lastly, our courts have been categorical that jurisdiction is everything. When it is established that a court has no jurisdiction in a dispute, it is by law required to down its tools. In ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR***, the Court of Appeal (Nyarangi JA) emphasized the centrality of jurisdiction in the following words: ***“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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”*** 1. Taking into account the above legal frameworks; the prevailing jurisprudence on the issue under consideration; and the nature of the claim that was before the trial court, it is clear to this court that the ex-parte time-enlargement order which the appellant relied on was a nullity. His claim was anchored on contract. Secondly, he acknowledged that the claim was stale. He sought to validate the claim by procuring an ex-parte time-enlargement order. Neither the Magistrate Court nor the Environment and Land Court had jurisdiction to enlarge time for lodging the stale claim which was clearly outside the purview of **Section 27** of the **Limitation of Actions Act**. 2. Consequently, the finding of this court on the first issue is that the ex-parte time-enlargement order which the appellant procured did not validate his claim because the order was a nullity on account of lack of jurisdiction on part of the Magistrate Court which purported to enlarge time. The further finding of this court is that the ex-parte time-enlargement order did not validate the appellant claim for an order decreeing payment of the current monetary value of the suit land. Similarly, it is the finding of this court on the third issue that the ex-parte time-enlargement order did not validate the appellant’s claim for an order of specific performance of the stale agreement dated 30/7/2008. 3. Did the appellant prove existence of a valid and enforceable land sale contract between him and the late Mukira? The court has already found that the claim was stale. To this extent, the contract was not enforceable through an order of specific performance. Besides that, a perusal of the exhibited land sale agreement reveals that there was no compliance with the mandatory requirements of **Section 3(3)** of the **Law of Contract Act** in the sense that the purported signature of the late Mukira was not attested. No cause of action could be maintained on the basis of the non-compliant contract. 4. For the above reasons, this court has not found merit in this appeal. The appeal is rejected. 5. On costs, the general principle in **Section 27** of the **Civil Procedure Act** is that costs follow the event. There is no proper basis to warrant a departure from the general principle. Consequently, the appellant shall bear costs of the appeal. **Disposal Orders** 1. In the end, this appeal is rejected and dismissed for lack of merit. The appellant shall bear costs of the appeal. **DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF** **JULY, 2026.** **B M EBOSO [MR]** **ELC JUDGE**