https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3056

Musau v Ndola (Sued as the administrator of the Estate of Elizabeth Kamene Ndolo) & another (Environment and Land Miscellaneous Case E006 of 2026) [2026] KEELC 3056 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3056 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Miscellaneous Case E006 of 2026 EO Obaga, J May 20, 2026 Between Christopher Musyoka Musau Applicant and Andrew Ndolo Ndola (Sued As The Administrator Of The Estate Of Elizabeth Kamene Ndolo) 1st Respondent Benedicter Ndunge Musau 2nd Respondent Ruling 1.This is a ruling in respect of an Exparte Originating Summons dated 16th March, 2026 in which the Applicant seeks leave to file suit against the Respondents. The Application is expressed to be brought under Article 50 of the Constitution of Kenya, Section 4, 27 and 28 of the Limitation of Actions Act and Order 37 Rule 6 of the Civil Procedure Rules and all enabling provisions of the law. 2.The Applicant states that he entered into a sale agreement with the 2nd Respondent for purchase of 20 hectares which was to be excised from parcel No. 1757/24 which was registered in the name of Elizabeth Kamene Ndolo deceased whose estate is being administered by the 1st Respondent. 3.It was mutually agreed that the vendors who are the Respondents were to obtain all necessary consents to subdivide and transfer the land to the Applicant. The Applicant states that the Respondents have since failed to honour their part of the agreement. 4.The 2nd Respondent is sister in law to the Applicant and the 1st Respondent is his brother in law. As the matter touches on family members, the Respondents pleaded with him to indulge them until the case was caught up by Limitation. He went to the Senior Principal Magistrate’s Court at Kilungu where he sought and obtained extension of time to file suit but the suit which was filed was struck out for lack of jurisdiction. 5.The Applicant states that he has been advised by his advocate that he cannot file a suit before obtaining extension of time to do so. 6.This being an exparte originating summons, on 23rd March, 2026, I directed the Applicant’s lawyer to file written submissions. The Applicant filed submissions dated 9th April, 2026. Though the Originating Summons was made exparte, the 1st Respondent filed a notice of preliminary objection dated 27th March, 2026. As the law requires that an application such as this be made exparte, I will not address myself to the preliminary objection by the 1st Respondent. 7.I have considered the submissions by the Applicant as well as the application by the Applicant. The only issue for determination is whether this court has jurisdiction to extend time in matters touching on contract. 8.Section 4(1) of the Limitation of Actions Act provides as follows:“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. 9.Order 37 Rule 6 of the Civil Procedure Rules provides as follows:“(1)An application under section 27 of the Limitation of Actions Act made before filing a suit shall be made ex parte by originating summons supported by affidavit.(2)Any such application made after the filing of a suit shall be made ex parte in that suit”. 10.Section 27 of the Limitation of Actions Act provides as follows:“Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.1.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 a written law or independently of a contract or written law); andb.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; andc.The court has, whether before or after the commencement of the action, granted leave for the purposes of this section; andd.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; andb.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(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; orb.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. 11.A keen look at Section 27 of the Limitation of Actions Act shows that the jurisdiction granted therein for extension of time is limited to claims for damages for negligence, nuisance or breach of duty and these damages are in respect of personal injury to a person. Extension of time under this Section does not include extension of time in contractual matters which have been caught up by the six year Limitation under Section 4(1) of the Limitation of Actions Act. 12.In Mary Osundwa –vs-Nzoia Sugar Company (2002) eKLR the Court of Appeal stated as follows:“Section 27(1) of the Limitation of Actions Act clearly lays down that in order to extend time for filing a suit the action must be founded on tort and must relate to the tort of negligence, nuisance and breach of duty and the damage claimed must be in respect of personal injuries to the Plaintiff as a result of the tort”. 13.The Applicant is seeking extension of time to file a claim for enforcement of a contract which he entered into with the 2nd Respondent and her husband on 9th June, 2009. There is nothing in this contract which entails personal injuries. This court does not therefore have jurisdiction to extend time as sought. 14.Jurisdiction of a court is conferred by the Constitution, statute or subsidiary legislation. The Supreme Court clearly stated this position in the case of Samuel Macharia & Another –vs- Kenya Commercial Bank Limited & 2 others (2012) eKLR as follows:“A court’s jurisdiction flows from either the Constitution [2012] eKLR in 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. We agree with counsel for the first and second respondents in his submission that 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. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It 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.” 15.As the court has no jurisdiction to extend time in the manner sought, I find that the originating summons dated 16th March, 2026 is devoid of merit. The same is dismissed with no order as to costs.It is so ordered. ...................................HON. E. OBAGAJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF MAY, 2026.In the absence of parties who were aware of the date of delivery of ruling.Court assistants – Musyoki and Kilonzo