https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4551

Kangethe (Suing as the Legal Representative of the Estate of the Late Crispin Kienyu Kangethe) v Mugo (Sued as the Legal Representative of the Estate of the Late Ephantus Njiru Gidion Murangai alias Espaenetus Njiru Gidion M’ngai) (Miscellaneous Application E023 of 2024) [2026] KEELC 4551 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4551 (KLR) Republic of Kenya In the Environment and Land Court at Embu Miscellaneous Application E023 of 2024 EC Cherono, J July 16, 2026 Between Johnson Maina Kangethe (Suing as the Legal Representative of the Estate of the Late Crispin Kienyu Kangethe) Applicant and Dorcas Njoki Mugo (Sued as the Legal Representative of the Estate of the Late Ephantus Njiru Gidion Murangai alias Espaenetus Njiru Gidion M’ngai) Respondent Ruling 1.Vide the amended Originating Summons dated 26/01/2026, the Applicant is seeking interalia, leave to file a suit out of the statutory period of time and that the costs of the application be in the cause. 2.The application is based on grounds on the face of the application supported by the affidavit of the Applicant, Johnson Maina Kangethe sworn on 26/01/2026. He stated that on 16/10/1980 the late Applicant, Crispin Kienyu Kangethe bought 12.83 acres out of land parcel No. Kagaari/Weru/1168 then measuring 26.33 acres from the late Respondent, Ephantus Njiru Gidion Murangai Alias Espaenetus Njiru Gidion M'ngai but the vendor died without transferring the land to him. He averred that after the purchase of the suit land the late Applicant took immediate possession of the suit land and had lived on and developed it ever since. The late Respondent is said to have refused to transfer the suit land to the late Applicant and on two occasions unsuccessfully brought goons to forcefully evict him from the land. 3.He stated that the late Respondent later on sued the late Applicant at the Chief Magistrate's Court in Embu in case No. 462 of 1994 seeking his eviction from the suit land but the entire suit was dismissed. That following the death of the late Respondent, the late Applicant had on numerous occasions requested the beneficiaries of the estate of the late Respondent who were well known to him to file a succession cause to enable him pursue his portion of the suit land but none of them had been willing to do so due to family differences. He averred that vide a ruling in Civil Appeal No. E016 of 2022 dated 03/07/2023, the High Court in Embu eventually recognized the Respondent herein as the administrator of the estate of the late Respondent. 4.He averred that he intends to lodge a claim for adverse possession on behalf of the estate of the late Applicant against the Respondent having been in possession of the land since the year 1980 and, since the statutory period for filing the suit expired, leave of the court is required. He stated that the delay in filing the suit was not deliberate as the late Applicant was actively trying to reclaim the land through other means as demonstrated. He contended that unless this Court intervenes and grants the orders sought in the application the estate of the late Applicant will permanently lose the suit land since the Respondent is in the process of selling the same to other parties. 5.He annexed to the supporting affidavit, a sale agreement and minutes of Embu North Divisional Land Control Board granting consent to subdivide the suit land, photos of the Applicants home, a plaint, defence and counterclaim in Embu case No. 462 of 1994, aa copy of a judgment in ELC Appeal No. 3 of 2017, a copy of a letter from the LSK and a grant of Ad Colligeda bona, a copy of a citation, a copy of a letter from the chief, a copy of an application in Embu Misc E002 of 2020, letters of administration to the estate of the late Respondent, applications and orders in other various cases. 6.The Respondent, Dorcas Njoki Mugo in response filed a replying affidavit dated 11/09/2025. She deposed that her relationship with the late Ephantus Njiru Gedion Murangai alias Epaenetus Njiru Gidion M'Ngai is limited to a purchaser-seller relationship. She averred that the Applicant's alleged purchase of 12.83 acres out of the suit land was the subject of Embu PMCC No. 462 of 1994 and subsequently Embu ELC Civil Appeal No. 3 of 2017, wherein the Applicant did not manage to prove the purported purchase. She further stated that she is not a beneficiary of the deceased's estate but a creditor by virtue of purchase and contended that the Applicant was misguided in alleging that the High Court in Embu Civil Appeal No. E016 of 2022 recognized her as the administrator of the estate, maintaining that her role in the administration of the estate was limited to finalizing the transfer of the suit land which she had purchased. 7.The Respondent further deponed that the Limitation of Actions Act does not confer jurisdiction upon the Court to extend time for filing suits based on adverse possession, and that the application is an abuse of court process as it seeks to re-litigate a dispute that has already been determined by a court of competent jurisdiction. She urged that the application be dismissed with costs. 8.When the application came up for directions, the parties agreed canvass it by way of written submissions. 9.The Applicant filed submissions dated 04/05/2026 through the firm of Tim Kariuki & Company Advocates. He cited the case of. David Bett & Anor v Joseph Njuguna Ng’ang’a & Anor (2019) KEHC 3839 (KLR) where it was held that:“The general trend, following the enactment of Sections 1A, 1B, 3 and 3B of the Civil Procedure Act and Article 159(2) (d) of the Constitution, is that courts today place heavy premium on substantive justice as opposed to undue regard to procedural technicalities. A look at recent judicial pronouncements from all the three levels of court structure leaves no doubt that the courts today abhor technicalities in the dispensation of justice." 10.He submitted that in the instant case, he was unable to file a suit on time to recover the portion of the suit land that he had bought from the deceased vendor due to the reasons that had been comprehensively explained in the supporting affidavit. He averred that the said reasons are merited and he should be granted an opportunity to file a suit against the Respondent who was confirmed as the Administrator of the estate of the deceased vendor by the High court at Embu in Civil Appeal No. E016 of 2022. 11.The Respondent filed submissions dated 26/02/2026 through the firm of Mburu W. Company Advocates. He submitted that the Limitation of Actions Act does not vest this court with the jurisdiction to extend time for filing of actions based on adverse possession and therefore the current application is bad in law and ought to be dismissed with costs. 12.Having considered the application, the replying affidavit and the parties submissions, the issue for determination is whether the Applicant has established a basis for the grant of leave to institute a suit outside the statutory limitation period. 13.It is evident from both the amended Originating Summons and the supporting affidavit that the intended suit is one founded on adverse possession. The Applicant's case is premised on the contention that the late Crispin Kienyu Kangethe purchased 12.83 acres out of land parcel No. Kagaari/Weru/1168 from the late Ephantus Njiru Gidion Murangai Alias Espaenetus Njiru Gidion M'Ngai in 1980 and took possession thereof immediately. It is his case that due to the death of the vendor and the absence of a duly appointed legal representative for many years, he was unable to institute proceedings for adverse possession and therefore requires leave of the Court to file such a claim. The Respondent opposes the application principally on the grounds that this Court lacks jurisdiction to extend time under the Limitation of Actions Act in respect of a claim founded on adverse possession and that the Applicant is in any event, attempting to revive issues relating to a sale transaction which have already been conclusively determined by competent courts. 14.I have examined the legal foundation upon which the application has been brought. The Applicant invokes Sections 26, 27 and 28 of the Limitation of Actions Act together with Order 37 Rule 6 the Civil Procedure Rules. However those provisions do not support the relief sought. Section 26 deals with extension of limitation period in case of fraud or mistake, Section 27 confers power upon the Court to extend time only in respect of actions in case of ignorance of material facts in actions for negligence, etc whereas Section 28 deals with applications for leave of court under section 27. A claim for adverse possession is governed by Sections 7, 13 and 38 of the Limitation of Actions Act. Section 38 merely grants a person who claims to have become entitled to land by adverse possession the right to apply to the High Court in this case, the Environment and Land Court for an order that he be registered as proprietor. The Limitation of Actions Act contains no provision requiring an applicant to first obtain leave before filing such proceedings. Equally, there is no law that gives the Court the power to enlarge time for instituting a claim for adverse possession. 15.The legal basis of adverse possession is that the claimant's rights accrue upon the expiry of the statutory period of twelve years prescribed under Section 7 of the Limitation of Actions Act. Time is therefore not an impediment to such a claim but rather the very foundation upon which the cause of action is built. Therefore, an application seeking extension of time before filing proceedings for adverse possession is legally unsound and misplaced. 16.I therefore find that the application before me is bad in law and it is hereby dismissed with costs to the Respondent. 17.Orders accordingly DATED, DELIVERED AND SIGNED AT EMBU THIS 16TH DAY OF JULY, 2026…………………..HON. E.C CHERONOELC JUDGE, EMBUIn the presence of;Mr. Waititu for the Respondent-present.Applicant/Advocate-absent.Ruth C/A-present.