Mbago v Obel & another (Environment and Land Appeal E003 of 2023) [2026] KEELC 4737 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT SIAYA** **ELC APPEAL No. E003 OF 2023** **JACOB APEL MBAGO** ………………………………………………. **APPELLANT** **VERSUS** **FRANCIS OOKO MWANZA OBEL** ………………………... **1ST RESPONDENT** **ISAYA OMONDI OBEL** ……………………………………. **2ND RESPONDENT** ***(Being an Appeal against the Judgment of the Magistrates Court of Kenya at Siaya by Honourable Lester Simiyu (SPM) delivered on 12th July, 2023)*** **JUDGEMENT** 1. The Appellant herein commenced this suit by way of Plaint dated & filed on 28th January, 2020 against the Defendants as Administrators of the Estate of the Late Michael Obel Ochola, the original proprietor of the parcel of land known as UHOLO/UGUNJA/255 (the suit property herein). The Appellant averred that he purchased a portion of the land from the deceased between 07.08.1978 and 21.05.1979 for Kshs. 4,915/-, which he paid in full and was acknowledged. He claimed that the land was not subdivided, but the deceased demarcated the purchased portion and gave to him the suit property and he took immediate possession and planted trees as well as cultivated it. 2. The Appellant claimed to have remained in peaceful possession of the suit land even after the demise of the original proprietor. That, however, the Defendants who are currently the Administrators of his estate are unamenable to subdividing the portion he purchased legally. For this reason, he sought a declaration as the lawful owner of the purchased portion, an order of specific performance to affect the sale and transfer thereof, a permanent injunction against the Defendants and costs. 3. The Respondents filed a joint Statement of Defence dated 9th January, 2010 disputing the alleged sale of the land to the Appellant herein, and that the purported agreement bore no signature of the seller. They also denied that the Appellant paid for the land, claiming that the acknowledgment was also not signed by the deceased and made no reference to the suit land or any previous agreements. They accused the Appellant of encroaching into the land claiming to have purchased it from a third party, who in turn was claiming adverse possession against the Estate of the deceased. They averred that the Appellant was part of a scheme intending to defraud them of their inheritance. They averred that since the cause of action is based on a contract, it is statute barred the purported agreements were made on 07.08.1979 and full payment made by 21.05.1979. 4. They further accused the Appellant of material non-disclosure for failing to reveal that he and 2 others sued the Defendants in RMCC No. 95 of 1994, which was dismissed for want of prosecution. The Defendants also raised a counterclaim in which they sought vacant possession of any part of the suit land from the Appellant, mesne profits from 2021 till vacant possession is obtained, general damages, costs and interests. 5. The matter was heard and judgment was delivered on 12th July, 2023 by Hon. Lester Simiyu (SPM), dismissing the Appellant’s case, and entering judgment for the Defendants in terms of their Counterclaim. 6. Being aggrieved by the said judgement the Appellant lodged an appeal to this court vide a Memorandum of Appeal dated 2nd August, 2023 where he penned the following grounds of appeal: - 7. The learned Magistrate erred in law and in fact in failing to appreciate the proper effect and purport of the evidence before it and in arriving at a decision which is not supported by evidence. 8. The learned Magistrate erred in law and in fact by disregarding the totality of the Appellant’s pleadings, submissions, cited authorities, and as a result, arrived at materially unsupported findings of fact and Law. 9. The learned Magistrate erred in fact and in law in finding that the Sale Agreement presented in court by the Appellant did not meet the requirements of the Contract Act and threshold required in law. 10. The learned Magistrate erred in law and in fact in finding that the suit presented before it was res judicata despite the fact that the threshold required for the same was not met in this trial by the Respondents. 11. The learned Magistrate erred in law and in fact in finding that the Applicant herein could not be granted specific performance as regards the suit property due to being barred by the statute of limitation despite the Applicant adducing evidence of having tried to affect the terms of the contract to no success. 12. The of the Honourable Judge (sic) was manifestly punitive against the Appellant and contrary to the overwhelming evidence and submissions of the Appellant. 13. The learned Magistrate erred in law and in fact in awarding the Respondent the sum of Kenya Shillings One Hundred Thousand Shillings being general damages as well as additional interest on the damages. 14. On the strength of the above grounds the Appellant seeks the following reliefs: - 15. THAT this appeal be allowed. 16. THAT judgment delivered by Hon. Lester Simiyu (SPM) dated 12th July, 2023 and any decree issued thereunder against the Appellant be set aside in its entirety. 17. THAT the Appellant be granted costs of this Appeal and cots in the lower court in Siaya ELC 9 of 2020. **SUBMISSIONS** 1. On 10th February, 2025, directions were issued by the court that the appeal proceeds by way of written submissions, which directions the parties have complied with. **The Appellant’s Submissions** 1. The Appellant filed undated submissions on 19.03.2025 through the firm of Austine Arnold & Associates Advocates. Counsel for the Appellant argued the Appeal on three issues being, 1) the applicability of res judicata in the lower court, 2) whether the claim in the lower court was statute barred by the Limitation of Actions Act and 3) whether the Appellant had proved a right to subdivision of the suit property. 2. On the first issue, Counsel for the Appellant posits that the trial court erred in finding that the suit was res judicata. Counsel argued that the Respondents failed to demonstrate that Civil Suit No. 95 of 1994 involved the same parties, litigating under the same title, the same subject matter, or the same issues as those raised in the present proceedings. Counsel also argued that the evidence tendered merely referred to land parcel SIAYA/UGUNJA/255 and did not establish that it concerned the same portion of land now in dispute. Further, that the 1994 suit related to 1½ acres, whereas the present claim concerns approximately ½ an acre, with no evidence linking the two disputes. 3. Counsel cited Section 7 of the Civil Procedure Act and the decisions in ***C.K. Bett Traders Limited & 2 Others vs Kennedy Mwangi & Another (2021) eKLR*** and ***Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others (2017) eKLR*** on the essential elements of res judicata. Counsel submitted that the Respondents failed to establish these mandatory requirements, yet the trial court upheld the doctrine without interrogating each element individually. By merely concluding that the disputes arose from the same ground, despite differences in the parties’ claims and the subject matter. Counsel faulted the court for misapplying the doctrine of res judicata, terming it an egregious omission. The court is urged to set aside the impugned judgment. 4. As to whether the suit is time barred, it was conceded that Section 4 of the Limitation of Actions Act prescribes a six-year limitation period for contractual claims, but urged the court to consider the exceptional circumstances surrounding the transaction. Counsel explained that the Appellant entered into a written land sale agreement in 1978 and has consistently pursued transfer of the land for over twenty years. That the Appellant remained on and enjoyed quiet possession of the suit land from 1979 and that his possession was not threatened prior to 2015. That his interest in the land was at no point between 1979 and 2015 extinguished. Reliance was placed in the observations made in ***Land Law and Conveyancing in Kenya by P.L. Onalo***, that possession is a dominant right in land interests. 5. The Appellant further contends that a caution registered against the land from 21.08.1995 until 24.11.2014 made it impossible to affect any transfer during that period. Counsel claims that the Appellant was aware of the caution and was the main architect of its withdrawal later on. Counsel submits that the Appellant clearly had possessory rights which were not contested throughout the lower court trial, and he had a legitimate right to remain thereon hoping that his portion would be hived off upon the right parties undertaking the succession proceedings. The Appellant therefore urges the Court to consider these special circumstances and also take note of his advanced age, illiteracy, and long-standing possession. 6. It asserted that the Appellant diligently ensured that the land was preserved so his portion could eventually be transferred to him. That the Appellant fought tooth and nail to resist the sale of the land by public auction following the deceased's loan default. Counsel argues that the Respondents disappeared during this period and only retuned to claim ownership after the discharge of the charge despite the 1st Respondent being an adult at that time. Accordingly, it is urged the Court should uphold the Appellant’s rights under Article 40 of the Constitution by ordering the subdivision and transfer of the purchased portion since he had acquired his claimed portion and paid for the same. 7. Counsel expressed the Appellant’s hope that this court would grant the Appellant the right to quiet possession and enjoyment of the property and prayed for the judgment of the lower court be dismissed as well as costs for the lower court suit and the appeal. **Appellants Further Submissions** 1. The Appellant also filed Further Submissions dated 22.06.2025 in response to the Respondents’ submissions. The same responded to the Respondents’ objection that the Record of Appeal is incomplete. It is submitted that contrary to the Respondent's assertion, their Written Submissions are contained at pages 144-147 of the Record of Appeal. Counsel states that the said submissions were served upon him on 01.07.2024 by an associate from the Respondents’ advocates’ firm, Miss Gloria Kwamboka. That before filing the Record of Appeal, the Appellant’s counsel expressly confirmed from the said Associate that those were indeed the Respondents’ submissions. Counsel accused the Respondents of malice in making the false claim that their submissions were not filed in the Record of Appeal. 2. It is contended that the said submissions in the lower court were served on them after requesting service severally, and they were finally served way after the matter had been concluded and judgment delivered. Counsel further states that the Respondents have never served any different submissions, and only raised this objection after the appeal had been lodged. Counsel claims that the Respondent’s conduct herein mirrors their approach in the trial court, where they introduced the Preliminary Objection extremely late and served it on the Appellant on the hearing day in open court. The Appellant therefore further accused the Respondent of deliberately orchestrating an incomplete record to defeat the appeal on a technicality. **The Respondents’ Submissions** 1. The Respondents filed joint submissions dated 20.05.2025 through the firm of Sagana, Biriq & Muganda Advocates LLP. Counsel for the Respondents opposed the appeal and argued it on four issues, 1) whether the suit is res judicata; 2) whether the agreements dated 07.08.1978 and 21.05.1979 are regular and legal; 3) whether the suit is statute barred for seeking specific performance of an agreement after 41 years; and 4) whether the Respondent’s counterclaim should have succeeded. 2. Citing Explanation 4 to Section 7 of the Civil Procedure Act and the decisions in ***Co-operative Bank of Kenya Limited vs Cosmas Mrombo Moka & Legacy Auctioneering Services (2019) KECA 788 (KLR)*** and ***Mumira vs Attorney General (2022) KEHC 271 (KLR)***, it was submitted that a suit dismissed for want of prosecution cannot be revived through the institution of a fresh suit based on the same facts. That the proper course available to the Appellant was to apply to set aside the dismissal order under the provisions of Order 12 Rule 7 of the Civil Procedure Rules, or challenge the dismissal through review or appeal. Consequently, they urge the Court to uphold the trial court’s finding that the suit is resjudicata and was properly dismissed. 3. It further submitted that the agreements for sale dated 07.08.1978 and 21.05.1979 were neither regular nor legally enforceable and could not support the Appellant’s claim for specific performance. Counsel argued that a contract that does not satisfy the requirements under Section 3(3) of the Law of Contract Act is unenforceable. He drew guidance from ***Reliable Electrical Engineers Ltd vs Mantrac Kenya Ltd (2006) eKLR***. and urged that although the Appellant claimed to have purchased a portion of the suit property from the deceased, Michael Obel Ochola, for Kshs. 4,915/- and completed payment on 21.05.1979, the documents relied upon were defective. Counsel pointed out that the agreements did not identify the suit property Uholo/Ugunja/255 or the portion allegedly sold. Further that there was no proof of payment, and the documents lacked the deceased’s signature or thumbprint and proper acknowledgment of receipt. 4. Counsel cited Section 65 of the Registered Land Act (repealed), now reflected under Section of the Land Act and Section 44 of the Land Registration Act on instruments for disposition of land. The Respondent further argues that the agreements further failed to meet the mandatory requirements of Section 3(3) of the law of Contract Act, which requires land sale agreements to be in writing, signed by all parties, and witnessed. Reliance was placed on ***Silverbird Kenya Limited vs Junction Limited & 3 Others (2013) eKLR*** and ***Nelson Kivuvani vs Yuda Komora & Another; Nairobi HCCC No. 956 of 1991,*** which emphasize that a valid land sale agreement must clearly identify the parties, property, purchase price, and obligations of the parties. Counsel referred this Court to the findings of the Trial Court on the validity of the Agreements and urged this court to find that the trial court did not err in its conclusion that the documents did not satisfy section 3(3) of the Law of Contract Act. 5. It is contended that the Appellant’s claim for specific performance is statute-barred under Section 4(1) of the Limitation of Actions Act, as it is seeking to enforce an alleged land sale agreement entered into in 1978/1979, with the Appellant claiming to have completed payment in 1979. Counsel argued that under Section 4(1) above, the suit ought to have been filed within six years from the time the cause of action accrued. Relying on ***Pius Kimaiyo Langat vs Co-operative Bank of Kenya Limited (2017) KECA 152 (KLR)***, ***Sea Angel Service Station Limited vs Abdul (2025) KECA 172 (KLR)*** and ***Willis Onditi Odhiambo vs Gateway Insurance Co. Ltd (2014) eKLR***, Counsel contends that actions founded on contract cannot be instituted after the statutory limitation period and that courts have no jurisdiction or discretion to extend time for such claims. Accordingly, this court is invited to uphold the Trial Court’s finding that the suit was time-barred. 6. It is further submitted that the Respondent discharged the burden of proof, and the Trial Court correctly found as it did and allowed their counterclaim for vacant possession after finding that the Appellant had unlawfully encroached on the suit property. Counsel relied on the Supreme Court’s observations in ***National Land Commission (2015) eKLR*** (sic) regarding the prevalent use of trespass as a means of acquiring both private and public land. That the Respondents have established on appeal that the suit in the trial court was res judicata, that the agreement relied on do not comply with Section 3(3) of the Law of Contract Act and Section 44 of the Land Registration Act and that the suit is time barred. Counsel argued that the Appellant failed to rebut evidence of unlawful encroachment, and having no right to remain thereon, should thus vacate the property. The Court is invited to uphold the Trial Court’s decision and dismiss the appeal in its entirety with costs to the Respondents. **Analysis and Determination** 1. I have considered the record of appeal, grounds relayed in the memorandum of appeal and submissions filed by the Parties and the authorities thereunder. This is a first appeal and in the case of ***Abok*** ***James Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR***, the duty of this Court as a first appellate court was stated to be as follows: - **“*This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kusthon (Kenya) Limited 2000 2EA 212 wherein the Court of Appeal held, inter alia, that: -*** ***“On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”*** 1. I have examined and considered the full record of the trial court; the grounds of appeal; and the parties’ respective submissions together with the issues they identified. I have also considered the relevant legal frameworks and the prevailing jurisprudence on the issues falling for determination in this appeal. In my view, the following are the issues that fall for determination in this appeal; 2. ***Whether the Plaintiff’s suit as filed in the lower court was res judicata*** 3. ***Whether there is any valid agreement for sale of land between the Appellant and the late Michael Obel Ochola*** 4. ***Whether the suit seeking to enforce the sale of land to the Appellant is statute barred*** 5. ***Whether the trial court erred in allowing the Respondent’s counterclaim*** 6. ***Who shall bear the costs of this Appeal?*** 7. I will first address a preliminary issue raised in the Respondent’s submissions. I note that Counsel for the Respondent submitted that the Record of Appeal is incomplete as it failed to include the Respondents’ written submissions dated 23.05.2023 filed in the Trial Court. The Respondents’ advocate thus argued that the Record of Appeal is defective and incompetent. 8. I must point out that this matter was mentioned on 10.02.2025 for directions on disposal of the Appeal. On the said date, Counsel for the Appellant informed the court that the Record of Appeal was complete, and Ms. Kwamboka who appeared for the Respondent also confirmed this ***“I have looked at the Record. It is in order”***. The Respondent cannot therefore be heard to raise an objection at a late stage when the Appellant had no opportunity to respond to it effectively, or even remedy the situation. In any event, the court confirmed to the parties that the trial court file had been availed to it and thus it had access to the record of the trial court, as well as the submissions filed therein. Having resolved the issue, I will now embark on the substantive issues. **Whether the Plaintiff’s suit as filed in the lower court was res judicata** 1. Is the suit filed in the lower court res judicata owing to Siaya RMCCC No. 95 of 1994? The law relating to res judicata is outlined under Section 7 of the Civil Procedure Act, which provides that: - ***7. Res judicata*** ***No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.*** ***Explanation. — (1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.*** ***Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.*** ***Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.*** ***Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.*** ***Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.*** ***Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.*** 1. The elements to be established for a party to be able to invoke the doctrine of res judicata are laid down in the case of ***Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others, (2017) eKLR***, where the Court of Appeal observed that: - ***“For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;*** ***a) The suit or issue was directly and substantially in issue in the former suit.*** ***b) That former suit was between the same parties or parties under whom they or any of them claim.*** ***c) Those parties were litigating under the same title.*** ***d) The issue was heard and finally determined in the former suit.*** ***e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised”*** 1. I have seen a copy of the Plaint filed in Siaya RMCC No. 95 of 1994. Indeed, the Appellant herein was the second Plaintiff in that suit. The Appellant, together with Appolo Otieno, the first Plaintiff and Gabriel Handa Odera, the third Plaintiff, sued the late Michael Opel, claiming to have purchased part of Uholo/Ugunja/255. Although the Plaint is not fully legible, I was able to make out that the Plaintiffs were claiming that the late Michael Obel kept promising to do the subdivision. They claimed that despite demand and notices, he had refused to sub-divide and transfer the land to them, the Appellant herein included. One of the reliefs sought was an order of subdivision and transfer of the land. It is not disputed that this suit was dismissed for want of prosecution. 2. In the present case, the Appellant sued the 1st and 2nd Defendant in their capacity as the Administrators of the estate of the late Michael Obel Ochola. In his Plaint filed in the lower court, the Appellant asked to be declared the legal owner of a portion of Uholo/Ugunja/255 which he claims to have purchased from the late Michael Obel Ochola. He seeks an order of specific performance to affect the sale and transfer of the land, an order directing the Land Registrar to register the transfer for the property and a permanent injunction. 3. From this brief summary of the two cases, it is clear that the subject matter is the same, the parties are the same as the Respondents herein were sued under the late Michael Obel Ochola as the Administrators of his estate. Moreover, the cause of action is the same, since in effect it is the refusal to subdivide and transfer land to the Plaintiff, and his co-Plaintiffs in the previous suit, parcels they claim to have purchased. Moreover, the reliefs sought are the same in so far as they seek to enforce the purported sale between the Appellant herein and the late Michael Obel Ochola. It is evident therefore that the issues in the previous case would be similar to those in the suit before the lower court, and which gave rise to the present appeal. 4. There is no doubt that the court that handled RMCC No. 95 of 1994 had jurisdiction to entertain it. As has already been admitted by the parties, the matter was dismissed for want of prosecution. But what I must ask is whether the matter was fully determined. If the suit was dismissed for want of prosecution, then clearly it was not heard on merit. Res judicata must apply upon full hearing and determination on merits. This is the position taken by the Supreme Court in ***John Florence Maritime Limited Vs Cabinet Secretary Infrastructure, Public Work*** *…. (2021).* On this basis I would fault the decision of the trial court and set aside the finding of resjudicata. 5. But having come to the above conclusion the Appellant is still not off the hook in my view. The question that I must address is whether a suit dismissed for want of prosecution could be resuscitated through afresh suit. I have already noted the similarities in the dismissed suit and the second suit. This is where the problem lies. This is an abuse of the court process. In ***Mumira Vs. Ag. Constitutional Petition No. 7 2020*** Justice Mativo (now JA) was confronted with a similar situation on whether the suit was res judicata stated that it was an abuse of court process. I respectfully agree since to file a fresh suit rather than applying to set aside the dismissal makes the subsequent suit and which is the present trial court suit the subject of this appeal, an abuse of the process which the court will not encourage. 6. The Plaintiff was not in a position to file another suit on the same cause of action seeking similar orders before any court on the same, and against the Respondents herein, who are sued in their capacity as the Administrators of the late Michael Obel Ochola, thus under the same title as the Defendant in the former suit. They could only first seek reinstatement or appeal the decision to dismiss. On this basis alone the suit would not stand. 7. Having determined that the suit was res judicata the trial court did not down its tool but proceeded on to determine the other issues raised in the suit. Therefore, it behoves this court to consider the said issues. **Whether there is any valid agreement for sale of land between the Appellant and the late Michael Obel Ochola** 1. I have looked at the proceedings detailing the witness testimonies adduced by the parties herein and their witnesses. The Appellant insisted that he purchased the land in 1978/1979 from the late Michael Obel Ochola, who signed the agreement by thumbprint. He testified that while he had witnesses to the sale, the deceased went alone and his witness was the chief. He testified that he had tried to obtain the land even going as far as objecting to the succession proceedings in the deceased’s estate, where he had sought subdivision and transfer of his portion to his name. The Appellant admits that he was one of the Plaintiffs in Case No. 95 of 1994 where they had sued the late Michael Obel Ochola. 2. The 1st Defendant testified as the sole defence witness. He denied the alleged sale, and claimed that the Plaintiff was given a small portion to plough vegetables but has now encroached on ½ an acre. He testified that while he was not on the land between 2004-2015, his cousins were cultivating it. He denied that he only came back to the land when the charge had been discharged. He insisted that the agreement was not signed and asserted that in 1979, his father never sold or signed the sale agreement. The Respondents urged that the Applicant be removed from their land. 3. The documents produced by the Plaintiff include a document purported to be the sale agreement dated 07.08.1978. The document is in dholuo, and as noted by the trial court, no translation thereto was provided for the court. It is claimed to have been signed by the late Michael Obel by way of affixing his thumbprint. However, no such thumbprint is visible, save for the words *‘Michael Obel’*, which were included not as a signature or mark of the deceased, but to show where his thumbprint ought to have been placed. It is my belief that the said was not executed by the owner of the land in the manner anticipated under the law. 4. Thereafter, there is another document, also in dholuo and not translated, dated 21.05.1979. In the absence of a translation into one of the two languages of the court, it is impossible for the court to make out the contents therein. However, as correctly submitted by the Respondents, this second purported agreement is not signed by the deceased original owner at all. Unlike the first document which referred to a parcel of land, this second document of 21.05.1979 makes no reference to any parcel of land let alone the suit property. 5. The Law of Contract Act is clear at Section 3(3) that: - ***(3) No suit shall be brought upon a contract for the disposition of an interest in land unless—*** ***(a) the contract upon which the suit is founded—*** ***(i) is in writing;*** ***(ii) is signed by all the parties thereto; and*** ***(b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:*** 1. This requirement is reiterated at Section 38 of the Land Act, which also stresses the need for written agreements, signature and attestation. The agreements that the Appellant seeks to rely on clearly do not meet the requirements of a valid contract. Both Agreements are not executed by the vendor, the second agreement does not even refer to any parcel of land, or show any link to the first agreement. 2. Even if this court were to consider that the purported agreements were made in 1978/1979, prior to the 2003 amendment, still, at the time, the Section 3(3) of the Law of Contract Act applicable at the time, read as follows: - ***“Section 3(3) of the Law of Contract Act (repealed),*** ***(3) No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it;*** ***Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract-*** ***(i) Has in part performance of the contract taken possession of the property or any part thereof; or*** ***(ii) Being already in possession continues in possession in part performance of the contract and has done some other act in furtherance of the contract.”*** 1. The Appellant’s agreement would still fail the requirements applicable to contracts for sale of land at the time for lack of the Vendor’s signature. This therefore answers the question of validity of the Appellant’s agreements. For me as long as the agreements did not meet the requirements of section 3(3), they could not therefore support or be a basis for a claim for specific performance. The Trial Court was thus correct in its finding that the agreements presented by the Appellant were not valid. **Whether the suit seeking to enforce the sale of land to the Appellant is statute barred** 1. The Respondent charges that the instant suit seeks to enforce the terms of a purported agreement for sale entered first on 07.08.1978, with the final payment made on 21.05.1979. That being the case, the Respondents have stated that the suit is statute barred under Section 4(1) of the Limitation of Actions Act, which provides as follows: - ***(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 cause of action in relation to which the Appellant herein sued the Respondents is a claim for specific performance of a contract. It undoubtedly therefore seeks to enforce the two agreements purportedly made in 1978 and 1979. From 1979 when the payment was made, the Appellant had six (6) years under Section 4(1) of the Limitation of Actions Act, within which to enforce the purported agreements. The Appellant however did not do so within the stipulated time, which time lapsed by 1985. 2. Section 27 of the Limitation of Actions Act provides instances where time may be extended with respect to matters relating to matters founded on tort. Clearly, this matter not being a tortious claim but one of enforcement of a contract, the court does not have jurisdiction to enlarge time under Section 27 of the Limitation of Actions Act. 3. Counsel for the Appellant admitted in his submissions the time limitation but urged the court to consider the exceptional circumstances surrounding the transaction. Unfortunately for the Appellant, his case has been caught by the doctrine of limitation. There was no prayer made in the lower court for extension of the time within which to file the suit, and equally, none has been made before this court. 4. But even if such an application had been made, Courts have emphasized time and again that jurisdiction to enlarge limitation period is donated by the Constitution, statute or subsidiary legislation. Where limitation period has been set by the law and the courts have not been granted jurisdiction to enlarge that limitation period, the courts have no jurisdiction to enlarge the limitation period. 5. This court draws guidance from ***Rift Valley Railways (Kenya) Ltd vs Hawkins Wagunza Musonye & another (2016) eKLR***, where the Court of Appeal held that: - **“Where a statute limits time for bringing an action, no court has the power to extend that time, unless the statute itself allows extension of time. That is what the court stated in *Divecon vs Samani (1995 - 1998) I EA 48 at p. 54*** ***‘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’.*”** 1. The only conclusion that this court can draw is that the Appellant’s suit, as filed in the lower court, was indeed statute barred by virtue of Section 4(1) of the Limitation of Actions Act. On this finding, I therefore see no reason to disturb the trial courts finding. **Whether the trial court erred in allowing the Respondent’s counterclaim** 1. On the counterclaim before the lower court, the Respondent’s sought the following orders: - 2. Vacant possession against the Defendant in the counterclaim from any portion of Uholo/Ugunja/255 3. Mesne profits from 2012 until vacant possession is obtained. 4. General damages 5. Costs and interest of the sums above 6. Costs and interest on the counterclaim 7. Any other relief his honourable court may deem fit to grant. 8. The Respondents annexed a copy of the title deed to the land issued in their joint names in 5th March, 2020. They have gone to great detail to outline how they came to be registered as proprietors. The Appellant having failed to prove his case, the Respondent’s title stands undefeated. Being the Registered owners, they are entitled to enjoy peaceful and quiet possession of the land. The Appellant on the other hand has demonstrated no right that entitles him to remain on the suit land. 9. On mesne profits, the trial court found that no basis had been laid for such award, and I do agree with this finding. As to the KShs. 100,000/-awarded to the Respondents as damages, the Appellant claimed that the trial court erred in granting the said relief. However, it is trite that trespass is actionable per se, which means that damages are recoverable once trespass is proved with no need for further proof thereon. In the case of ***Park Towers Ltd v. John Mithamo Njika & 7 others (2014) eKLR J.M Mutungi J***., stated: - ―***I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages. The court in such circumstances is under a duty to assess the damages awardable depending on the unique facts and circumstances of each case...*** 10. The Appellant has in this case been found to have no right to be on the land. He has not proved that he indeed acquired the land through purchase as claimed. Therefore, the trial court was right to have made an award for general damages. All in all, the Trial court made no error in allowing the Respondents’ counterclaim. **Who shall bear the costs of this Appeal?** 1. Section 27 of the Civil Procedure Act, Cap. 21, encapsulates the general principle governing the award of costs in civil proceedings, including appeals. While the jurisdiction to award costs is discretionary, such discretion must be exercised judicially and upon sound legal principles. The proviso to Section 27(1) establishes the general rule that costs shall follow the event unless, for good reason to be recorded, the Court orders otherwise. 2. The effect of the foregoing provision is that a successful litigant is, as a general rule, entitled to the costs of the proceedings, including appellate proceedings, unless the Court is persuaded that there exist sufficient reasons to depart from that principle. Such departure is the exception rather than the norm and must be founded upon sound and discernible reasons. 3. In the present appeal, the Appellant has failed to demonstrate any basis upon which this Court should interfere with the judgment of the trial court. Having been unsuccessful, the Appellant must bear the consequences attendant thereto. There being no exceptional circumstances warranting a departure from the general principle under Section 27 of the Civil Procedure Act, the Appellant herein shall bear the costs of this appeal, which are properly payable to the Respondent. **Conclusion: -** 1. Ultimately, the present appeal by the Appellant has no merit. The same is hereby dismissed with costs to the Respondents. **Delivered** and **Dated** This **23rd Day** of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **23/07/2026** **Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** Mr. Omondi Were for the appellants M/s Kinyua holding brief for Mr. Sagana for respondent Court Assistant: Abiud Wekesa