https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10730

Kimani v Standard Chartered Bank Kenya Ltd & another (Commercial Miscellaneous Application E002 of 2025) [2026] KEHC 10730 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 10730 (KLR) Republic of Kenya In the High Court at Kerugoya Commercial Miscellaneous Application E002 of 2025 EM Muriithi, J May 14, 2026 Between Ezekiel Kamau Kimani Applicant and Standard Chartered Bank Kenya Limited 1st Respondent Cyrus Mucebiu Irungu 2nd Respondent Ruling Background 1.Upon a suit by the Applicant/Intended Plaintiff filed in the Kerugoya Environment and Land Court as ELC Case No. 24 of 2025 challenging the exercise of Chargee’s power of sale by the 1st Respondent/Intended Defendant Bank on 18/11/1993 and the transfer to the 2nd Respondent/Intended Defendant purchaser, the Court (J.M. Mutungi, J.) struck out the claim as having been filed in the wrong Court and ruled that it ought to have been filed in the High Court, in the determination of the Judgment delivered on 12/11/2025, as follows:“ 32.Having reviewed and considered the pleadings, the evidence and the submissions made on behalf of the parties the issues that arise for determination are as follows.-1.Whether the Court has jurisdiction to determine the matter?2.Whether the Plaintiffs suit is statute barred under the Limitation of Actions Act?3.Whether the 1st Defendant fraudulently and unlawfully sold the Plaintiffs property in connivance with the 2nd & 3rd Defendants?4.Whether the 3rd Defendant was a bona fide purchaser?5.What reliefs, if any should the Court grant?Whether the Court has Jurisdiction? 33.The issue of jurisdiction was not pleaded by the parties in their pleadings. However, the 1st and 2nd Defendants in Submissions at paragraph 48 raised the issues thus:-“In any event, the Honourable Court, being the Environment and Land Court is vested with jurisdiction to hear and determine disputes relating to the environment and land. It is not vested with the jurisdiction to hear and determine disputes between banks and their customers arising from the operation of the customers' bank accounts and the question whether the banks discharged their statutory and contractual obligations in relation to those accounts." 34.A jurisdictional issue can be raised by any party at any stage of the proceedings in a matter and/or the Court may on its own motion raise the issue. This is because jurisdiction is the pedestal upon which Judicial authority is exercised by the Court and without jurisdiction a Court can only act in vain as anything done by the Court would be null and void. The Court of Appeal in the case of Owners of the Motor Vessel "Lilian S" -vs~ Caltex Oil (Kenya) Ltd (1989) eKLR stated thus as per Nyarangi JA:-"I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is the obliged to decide the issue right away on the material before it. 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. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." 35.In the matter before the Court the dispute arises and touches on a loan facility extended to the Plaintiff by the 1st Defendant against the security of land parcel No. Ngariama/Lower Ngariama/514 against Defendant at the time his property was sold by public auction. The which a charge was registered by the Plaintiff in favour of the 1st Defendant. The 1st Defendant contends the Plaintiff defaulted in the repayment of the loan and that as a consequence it procedurally exercised its power of sale conferred under the charge and the property was sold by public auction on 18th November. 1993. For his part the Plaintiff claimed that he was not indebted to the 1st Plaintiff denied having been served with the requisite statutory notice and further contended the I" Defendant mismanaged his account as it failed to reflect a credit of Kshs 50.463/- that he had deposited on 18th April 1991 and that the error persisted upto September 2011 when the l" Defendant admitted there had been a "system error". The Plaintiff took the position that had it not been for the mistake, he would not have been in default in regard to the loan repayment. He thus contended his property was fraudulently and unlawfully sold. Given that background the Court has to determine whether it has jurisdiction to determine the dispute. 36.The jurisdiction of this Court is derived from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011. Section 13(2) of the Environment and Land Court Act vests this Court with jurisdiction over disputes relating to the environment, use, occupation and title to land. The High Court, on the other hand, has jurisdiction over Commercial (Civil) matters including enforcement of securities which include charges and mortgages over land. In the matter before the Court. the real contest is whether the 1st Defendant exercised its power of sale lawfully and/or whether the acknowledged "system error" in the 1st Defendant's operation of the Plaintiffs bank account resulted in the alleged fraudulent sale of the Plaintiffs charged property. The Court in the premises has to determine whether the dispute is within the categories that it has jurisdiction to determine. 37.The Court of Appeal in the case of Bank of Africa (k) Ltd -v-s TSS Investment (2024) KECA410(KLR) and in the case of Co-operative Bank Ltd -vs- Patrick Kangethe Njuguna & Others (2017) KECA 79 (KLR) has emphatically stated that where a dispute arises and touches on the enforcement of a charge created over land as security, such dispute is of a commercial nature arising out of a commercial transaction and does not constitute "use of land" as to fall within the jurisdiction of the ELC. The Court of Appeal held it was the High Court that had jurisdiction to deal with such matter as a commercial dispute. 38.In the case of Co-operative Bank ltd -vs- Patrick Kangethe Njuguna (supra) the Court at paragraph 36 of its Judgment stated:-“36.By definition, a charge is an interest in land securing the payment of money or money's worth or the fulfillment of any condition (see Section 2 of the Land Act). As such, it gives rise to a relationship where one person acquires rights over land of another as security in exchange for money or money's worth. The rights so acquired are limited to realization of the security so advanced (see section 80 of the Land Act). The creation of that relationship thereof, has nothing to do with the use of teh land as defined above). Indeed that relationship is simply limited to ensuring the chargee is assured of the repayment of he money he has advanced to the chargor.” 39.In the instant case, there is no dispute that the Plaintiff was advanced a loan by the 1st Defendant (chargee) and that the Plaintiff offered land parcel No. Ngariama/Lower Ngariama/514 as security and the same was charged in favour of the 1st Defendant. It is admitted that the property was sold by public auction and that the 3rd Defendant bought the property at the public auction. The dispute is whether the 1st Defendant's exercise of its power of sale under the charge was lawful. 40.The Court of Appeal in the Bank of Africa -V5- TSS Investment case (supra) in considering the jurisdiction of the ELC relied on its own decisions in the case of Co-operative Bank Ltd -vs- Patrick Kangethe (supra); the case of Joel Kytha Mbaluka T/a Mbaluka & Associates -vs- Daniel Ochieng Ogoa t/a Ogoa Okello & Company Advocates (2019) eKLR where the Court at Paragraph 12 of its Judgment stated:-"12.We reiterate the position taken in the Co-operative Bank of Kenya Ltd -Vs~ Patrick Kangethe Njuguna (supra), that in construing whether the ELC had jurisdiction in a matter, the consideration must be the dominant issue in the dispute and whether that issue relates to the environment and use and occupation of and title to land." 41.Without doubt the issues that arise in this matter do not relate to the environment, use, occupation of, and title to land. The issues revolve and relate to the charge that was created over the Plaintiffs land; the operation of the Plaintiffs bank account with the 1st Defendant, and whether the l" Defendant lawfully exercised its power of sale in realizing its security. On the basis of the Court of Appeal decisions that I have referred to, it is crystal clear that this Court has no jurisdiction to entertain this matter. It is unfortunate that the Court has to rule on its jurisdiction so late in the day but then it would be futile for the Court to pronounce itself on the other issues. It would be an exercise in futility. I have held. I have no jurisdiction, and accordingly I must down my tools in the words of Nyarangi JA in the Owners of the Motor Vessel "Lillian S" -vs - Caltex Oil(k) Ltd Case (supra). 42.The Plaintiffs suit is hereby ordered struck out with no order as to costs. Each party to bear their own costs of the suit.” 2.On account of the passage of time since the impugned sale, the applicant has to contend with the statutory provisions of the Limitation of Actions Act, cap. 22, Laws of Kenya. 3.The applicant/Intended plaintiff subsequently sought to file a suit based on alleged fraud, illegality and mistake in the exercise of the Bank’s power of sale, as shown in the Draft Plaint attached to the application for extension of time herein:“Republic Of KenyaIn The High Court Of Kenya At KerugoyaCivil Suit ............. Of 2025Ezekiel Kamau Kimani ...................................................................plaintiffAndStandard Chartered BankKenya Limited .........................................................................1st DefendantCyrus Mucebiu Irungu ......................................................2nd DefendantDraft Plaint(Fast Track) 1.The Plaintiff is an 'adult male of sound mind, a citizen of the Republic of Kenya, and currently residing in Nairobi County within the Republic of Kenya. His address for service for purposes of this suit is care of Kibatia & Company Advocates LLP, 31 Donyo Sabuk Lane, Westlands, P.O. Box 20631-00200, Nairobi. 2.The 1st Defendant is a financial institution incorporated under the laws of Kenya, carrying on banking business within the Republic of Kenya. Service of summons shall be effected through the Plaintiffs' advocates' offices. 3.The 2nd Defendant is an adult male of sound mind and a resident within the Republic of Kenya. Service of summons shall be effected through the Plaintiffs' advocates' offices. 4.At all material times, the Plaintiff was and remains the lawful, legal, and registered proprietor of all that parcel of land known as L.R. NO. Ngariama/Lower Ngariama/514 situated in Kirinyaga County (hereinafter referred to as "the suit property"). 5.On or about 18th April 1991, the Plaintiff applied for and was granted a loan facility in the sum of Kshs. 100,000.00 by the pt Defendant. The said loan was secured by a legal charge duly registered against the title of the suit property and was repayable over a period of 3 years. The loan was operated under Standard Chartered Bank Account Number 01xxxxxxxxxx12 at the Karatina Branch. 6.Upon approval of the facility, the Plaintiff withdrew only Kshs. 50,000.00 on 18th April 1991, leaving an unutilised credit balance of Kshs. 50,516.15, a fact expressly borne out by the pt Defendant's own contemporaneous banking records. 7.The Plaintiff avers that he utilised only the withdrawn sum of Kshs. 50,000.00, which he scrupulously and diligently repaid through regular monthly instalments in conformity with the loan agreement, thereby fully liquidating the debt together with all the accrued interest on the entire loan to the very last coin, while the unutilised balance remained untouched, intact, and available in the loan account at all material times. 8.Despite the Plaintiff's full compliance with the loan terms, and in a manner that was patently oppressive, arbitrary, and actuated by bad faith, the Plaintiff was in or about May 1993 served with a Statutory Notice dated 26th May 1993 by the pt Defendant, falsely alleging default and demanding an alleged outstanding sum of Kshs. 138,396.75, a figure that was manifestly inexplicable, unconscionable, unsupported by any lawful computation, and wholly inconsistent with the true and correct state of the account. 9.The Plaintiff immediately protested the false allegations and sought clarification and reconciliation of his loan account. However, the pt Defendant deliberately, maliciously, and with intent to conceal its own wrongdoing:a.Withheld and refused to supply the Plaintiff with bank statements for the critical period between 1991 and 1994;b.Failed and refused to investigate or respond substantively to the Plaintiff's repeated complaints and objections;c.Proceeded to unlawfully instruct the then Gitco Auctioneers to advertise and sell the suit property notwithstanding the absence of any lawful default. 10.As a direct result of the 1st Defendant's conduct, the suit property was unlawfully, irregularly, and fraudulently sold through a purported public auction on 18th November 1993 to the 2nd Defendant, thereby dispossessing the Plaintiff of his land without lawful justification. 11.The Plaintiff avers that the purported auction and sale were vitiated by fundamental illegality, fraud, and procedural impropriety, inter alia, because:a.No valid or subsisting default existed to trigger the statutory power of sale;b.The statutory redemption period had not lawfully lapsed;c.The Plaintiff had made concrete arrangements for Green Africa Society International to settle any alleged outstanding amount by the end of November 1993;d.The auction proceeded notwithstanding a stop order issued by the District Officer and duly served upon Gitco Auctioneers on the very morning of the scheduled auction. 12.The Plaintiff avers that he was never in default of his loan obligations and that the statutory notice dated 26th May 1993 was unlawfully, recklessly, and fraudulently issued by the 1st Defendant in abuse of its statutory power. 13.After nearly 2 decades of relentless pursuit, correspondence, and demands by the Plaintiff, the 1st Defendant, in a letter dated 28th October 2011, expressly admitted in writing that:a.A material "system error" had occurred in the Plaintiff's loan account; andb.The balance carried forward on 19th April 1991 had been understated by Kshs.50,516.15. 14.The Plaintiff avers that the said system error was the direct, proximate, and operative cause of the false statutory notice, the unlawful invocation of the statutory power of sale, and the eventual illegal dispossession of the Plaintiff's land. 15.In a belated and inadequate attempt at damage control, the pt Defendant refunded the Plaintiff only Kshs.159,390.00, purportedly representing the understated amount with minimal interest, while wilfully ignoring, trivialising, and refusing to compensate the Plaintiff for the colossal loss occasioned by the unlawful sale of his prime agricultural land. 16.As a consequence of the Defendants' actions and omissions, the Plaintiff has been denied the use, possession, occupation, and enjoyment of the suit property for over 32 years. 17.The Plaintiff avers that the Defendants, whether jointly, severally, or In concert, acted fraudulently, collusively, and in bad faith.Particulars Of Fraud, Collusion, And Bad Faith Against The 1st Defendanta.Issuing a statutory notice founded on false, erroneous, and manipulated account data;b.Deliberately withholding bank statements to conceal material errors;c.Proceeding with the sale despite knowledge of the District Officer's stop order;d.Failing to exercise due care, skill, and diligence expected of a mortgagee;e.Admitting a system error only after 18 years of denial;f.Failing to properly account for surplus proceeds of sale;g.Effecting transfer of the suit property using irregular and backdated documentation.Particulars Of Fraud, Collusion, And Bad Faith Against The 2nd Defendanta.Purchasing the suit property with actual or constructive notice of the dispute;b.Benefiting from an unlawful and irregular sale;c.Colluding with the 1st Defendant to defeat the Plaintiff's proprietary rights. 18.As a direct, foreseeable, and continuing consequence of the Defendants' unlawful conduct, the Plaintiff has suffered immense loss, damage, hardship, and emotional distress. 19.At all material tlrnes, the suit property was productive agricultural land on which the Plaintiff carried out commercial farming, particularly the cultivation of French beans for export, earning an average monthly income of Kshs. 50,000.00.Particulars Of Loss And Damagea.Loss of the suit property, now of substantially enhanced value;b.Deprivation of use, occupation, and enjoyment for over 32 years;c.Loss of earnings amounting to special damages of Kshs. 19,200,000.00. 20.Despite repeated demands, notices, and warnings, the Defendants have refused and/or neglected to admit liability, necessitating the institution of this suit. 21.The cause of action arose within the territorial jurisdiction of this Honourable Court at Kerugoya, Kirinyaga County. 22.There is no other suit pending between the parties herein concerning the same subject matter. The previous suit, Environment and Land Court Case No. 24 of 2015, was dismissed on 12th November 2025 purely on jurisdictional grounds, without any determination of the merits, and is no longer pending. This suit is therefore the sole and proper forum for adjudication of the Plaintiff's grievances.Wherefore the Plaintiff prays for judgment against the Defendants jointly and severally for:(a)A Declaration that the Statutory Notice dated 26th May 1993 was unlawful, irregular, null, void, and of no legal effect;(b)A Declaration that the Plaintiff is and remains the lawful, legal, and beneficial owner of all that parcel of land known as L.R. NO. Ngariama/lower Ngariama/514;(c)An order cancelling, nullifying, and declaring void ab initio any and all titles, transfers, or entries effected pursuant to the unlawful sale of the suit property;(d)An order directing the rectification of the land register by cancelling the name of the 2nd Defendant and reinstating the Plaintiff as the registered proprietor of the suit property;(e)A Permanent Injunction restraining the Defendants, their agents, servants, or any person claiming under them from trespassing upon, transferring, charging, leasing, wasting, or in any other manner interfering with the Plaintiff's quiet possession and enjoyment of the suit property;(f)Special Damages in the sum of Kshs.19,200,000.00 being loss of earnings from the suit property from November 1993 to December 2025;(g)General Damages for loss of use and enjoyment of the suit property, loss of livelihood, and mental anguish, distress, and suffering occasioned by the Defendants' unlawful conduct;(h)Exemplary And Aggravated Damages for the Defendants' fraudulent, oppressive, high-handed, and contumelious conduct;(i)Interest on (f), (g), and (h) above at court rates from the date of filing suit until payment in full;(j)Costs of the suit together with interest thereon.(k)In The Alternative, and only if this Honourable Court declines or is unable to grant prayers (a) to (e) above, the Plaintiff prays for the following further remedies:(i)General Damages equivalent to the current open market value of L.R. NO. Ngariama/Lower Ngariama/514 as at the date of judgment, in lieu of restitution;(ii)Interest on (i) above at court rates from the date of dispossession until payment in full;(I)Such Other Or Further Relief as this Honourable Court may deem just and fit to grant.Dated At Nairobi This Day Of ....................... 2025.Kibatia & Company Advocates LlpAdvocates For The Applicant” 4.The Applicant invokes sections 26 and 27 of the Limitation of Actions Act seeking extension of time to file the claim in the commercial division of the High Court. The application 5.The applicant filed a Notice of Motion dated 15th December, 2025 expressed to be brought “Under Section 27 of the Limitation of Actions Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules; Article 50(1) of the Constitution of Kenva; and all other enabling provisions of the Law” seeking the following orders:Orders:1.That this Application be and is hereby certified as urgent and is admitted for hearing ex parte in the first instance.2.That the Applicant be and is hereby granted leave to institute a fresh suit against the Respondents out of time, the same having been otherwise barred by the provisions of the limitation of Actions Act, Cap 22, Laws of Kenya.3.That upon the grant of leave, the Applicant be and is hereby permitted to file and serve the annexed draft plaint within fourteen (14) days from the date of this Order.4.That the intended suit, once filed, be and is hereby directed to be expedited and accorded priority hearing on account of the Applicant's advanced age and the prolonged pendency of the dispute, the subject matter having remained unresolved on the merits for over 10 years.5.That the costs of this Application shall be in the cause.” 6.The application was based on the grounds set out in the application primary of which is alleged discovery of a system error in the bank’s accounts allegedly admitted by the 1st Respondent’s letter dated 28/10/2011, as follows:“Grounds:a.On or about 18th April 1991, the pt Respondent advanced to the Applicant a loan facility in the sum of Kshs. 100,000/=, which was secured by a registered charge over all that parcel of land known as L.R. NO. Ngariama/Lower Ngariama/514 ("the suit property").b.Crucially, the Applicant withdrew only Kshs. 50,000/= from the said loan account, leaving a credit balance of Kshs. 50,516.15/=, a fact borne out by the pt Respondent's own records.c.The Applicant utilised only the withdrawn sum of Kshs. 50,000/=, which he scrupulously repaid through regular monthly instalments, in compliance with the loan agreement, fully liquidating the debt together with all accrued interest on the entire loan to the very last coin, while the unutilised balance remained untouched and intact in the loan account at all material times.d.Notwithstanding the foregoing, and in a manner that is patently oppressive, the Applicant was in or about May 1993 served with a Statutory Notice dated 26th May 1993, in which the 1st Respondent falsely alleged default and demanded an alleged outstanding sum of Kshs. 138,396.75/=, a figure that is manifestly inexplicable, unconscionable, and wholly inconsistent with the true state of the account.e.Despite the Applicant's protests and efforts to clarify the error, the pt Respondent and the then Gitco auctioneers proceeded to unlawfully and fraudulently sell the suit property through a public auction on 18th November 1993 to the 2nd Respondent.f.The Applicant's thus filed a suit via a Plaint dated 27th February 2015 in Environment and Land Court Case No. 24 of 2015, which had been pending for over 10 years, but unfortunately dismissed on 12th November 2025 solely because it had been inadvertently filed in the wrong forum (Environment and Land Court).g.Crucially, the Court did not pronounce itself on, nor determine, the Applicant's substantive rights, which remain wholly unheard and unadjudicated.h.The dismissal, however, has placed the Applicant in a grave and precarious position, as any fresh suit filed before the proper forum (the High Court) would, on the face of it, be met with an objection on limitation, thereby shutting the doors of justice unless this Honourable Court grants leave under the Limitation of Actions Act to pursue recovery of land and/or damages.i.The Applicant should not be penalized for this procedural misstep, which was caused entirely by his former advocates and not by any fault, omission, or indolence on his part.j.The delay in refiling is neither inordinate nor inexcusable, having been occasioned by:(i)The mistake of the previous counsel in filing the suit in a court without jurisdiction;(ii)The subsequent transition of legal representation, which required time for the new advocates to peruse the voluminous court record, take instructions, and prepare fresh pleadings;(iii)The Applicant's advanced age which delayed the facilitation of the legal transition.k.That the Applicant's cause of action is grounded in fraud, mistake, and unlawful sale of charged property. The pt Respondent admitted in Its letter dated 28th October 2011 that a "system error" understated the Applicant's loan account balance, which error directly precipitated the illegal statutory notice and subsequent sale.l.The Applicant has been vigilantly pursuing his rights since 1993, through complaints to the Kenya Anti-Corruption Authority, the Banking Fraud Investigations Department, the Ministry of Justice, and numerous demand letters, the last of which was issued in 2014.m.The Applicant is now aged and in declining health. Justice delayed is justice denied. It would be a travesty of justice if he were prevented from pursuing his claim on a limitation barrier, especially when the issue of limitation was already resolved in his favour in the previous suit.n.The Respondents will suffer no prejudice that cannot be compensated by costs, given that they have been aware of this claim since 1999 and have actively participated in the previous suit for 10 years, while the Applicant has lost his only substantial asset and a lifetime investment.o.The balance of convenience tilts decisively in favour of the Applicant, and it is therefore just, equitable, and consonant with the ends of justice that this Honourable Court exercises its discretion in his favour and grants the orders sought.” 7.The Applicant’s Supporting Affidavit sworn on 15/12/2025 set out his case and the facts relied on as follows:“Supporting AffidavitI, Ezekiel Kamau Kimani, adult male of sound mind, currently residing in Nairobi and care of Postal Address P,Q. Box 20631 - 00200 Nairobi, do hereby make oath and state as follows: 1.That I am the Applicant herein and the intended Plaintiff in this matter. I have personal knowledge of the facts and circumstances deponed herein unless otherwise stated, and I am competent to swear this Affidavit. 2.That I was and am the legal and beneficial owner of all that parcel of land known as L.R.No. Ngariama/Lower Ngariama/514 situated in Kirlnyaga County (hereinafter "the suit property"). Annexed hereto and marked "EKK-l" is a copy of the original Title Deed in my name. 3.That on or about 18th April 1991, the pt Respondent advanced to me a loan facility in the sum of Kshs.100,000/=, which was secured by a registered charge over the suit property. Annexed hereto and marked "EKK-2" is a copy of the Charge Instrument. 4.That I withdrew only Kshs. 50,000/= from the said loan account, leaving a credit balance of Kshs.50,516.15/=, a fact borne out by the pt Respondent's own records. Annexed hereto and marked, "EKK-3" are copies of the Bank statement. 5.That I only utilised the withdrawn sum of Kshs. 50,000/=, which I scrupulously repaid through regular monthly instalments, in strict compliance with the loan agreement, fully liquidating the debt together with all accrued interest to the very last coin, while the unutilised balance remained untouched and intact in the loan account at all material times. 6.That notwithstanding the foregoing, and in a manner that is patently oppressive, I was on or about May 1993 served with a Statutory Notice dated 26th May 1993, In which the pt Respondent falsely alleged default and demanded an alleged outstanding sum of Kshs.138,396.75/=/ a figure that is manifestly inexplicable, unconscionable, and wholly inconsistent with the true state of the account. 7.That despite my protests and efforts to clarify the error, the pt Respondent through the then Gitco auctioneers proceeded to unlawfully and fraudulently sell the suit property through a public auction on 18th November 1993 to the 2nd Respondent. Annexed hereto and marked "EKK-4" is a letter from the then 1st Respondent's Advocates notifying the Applicant of the sale. 8.That following the illegal sale, I embarked on a long and arduous journey to seek justice.I wrote numerous letters to the pt Respondent demanding bank statements and an explanation, but the Bank deliberately frustrated my efforts by withholding documents, demanding exorbitant fees, and denying liability. Annexed hereto and marked "EKK-5" is a bundle of my correspondence with the Bank between 1999 and 2014. 9.That it was not until 28th October 2011 that the pt Respondent finally admitted, in writing, that a "system error" had caused the understatement of my loan account balance by Kshs.50,516.15/=. This admission was the first time I became fully aware of the factual and legal basis of my claim against the Respondents for unlawful sale based on mistake and fraud. Annexed hereto and marked "EKK-6" is a copy of the Bank's admission letter dated 28th October 2011. 10.That based on this admission, I instructed my previous advocates to file suit, dated 27th February 2015 in Environment and Land Court Case No. 24 of 2015 (hereinafter "the previous suit"). The suit sought, inter alia, declarations that the sale was unlawful, cancellation of the title issued to the 2nd Respondent, and damages. 11.That the Respondents filed a Preliminary Objection on the ground that the suit was timebarred under the limitation of Actions Act. The objection was heard and determined by Hon. Justice B.N. Olao, who delivered a Ruling on 2pt April 2017. In the said Ruling, which I annexed hereto and marked "EKK-7", the learned Judge expressly held that my suit was not time-barred because time began to run only after I discovered the mistake, which was in 2011 when the Bank admitted the error. The issue of limitation was therefore conclusively determined in my favour. 12.That regrettably, and through no fault of mine, my previous advocates filed the suit in he Environment and Land Court, which lacked jurisdiction over the subject matter. This fatal jurisdictional defect was only identified years later, and on 12th November 2025, Hon. Justice J.M. Mutungi delivered a Judgement dismissing the suit solely on the ground that the ELC lacked jurisdiction. Annexed hereto and marked "EKK-B" a copy of the said Judgment. 13.That the dismissal was purely procedural and did not in any way determine the merits of my claim. However, I have been advised by my Advocates on record, whose advise I verily believe to be true, that the dismissal has placed me in a perilous situation: any fresh suit filed in the proper forum (the High Court) would, on the face of it, appear to be barred by limitation unless this Honourable Court grants leave under the Limitation of Actions Act to pursue recovery of land and/or damages. 14.That the delay in refiling this suit is neither inordinate nor inexcusable. It has been occasioned by the following factors:(a)The filing of the suit in a court without jurisdiction was a procedural error by my former advocates, for which I should not be penalized.(b)Following the dismissal, I took time to secure new legal representation. The transition involved perusing voluminous court files, retrieving documents, and preparing a fresh strategy, which was time-consuming given my advanced age. 15.That I am now 75 years old and in declining health. The stress and anxiety of this prolonged litigation have taken a significant toll on my wellbeing. I fear that unless this matter is expedited, I may not live to see justice done. Annexed hereto and marked "EKK- 9" a copy of my National Identity Card. 16.That I have a strong and arguable case with high prospects of success. The 1st Respondent has already admitted the "system error" that precipitated the unlawful sale. The issues of fraud, collusion, and breach of statutory duty are triable and deserve a full hearing on the merits. Annexed hereto and marked "EKK-l0" a copy of the Draft Plaint. 17.That the Respondents will suffer no prejudice if leave is granted. They have been aware of my claim since 1999, have actively participated in the previous suit for over 10 years, and have all relevant documents in their possession. Granting leave will merely allow the matter to be heard in the correct forum. 18.That in the interest of justice, equity, and fairness, this Honourable Court should exercise its discretion to extend time and allow me to file suit. 19.That denying me this opportunity would result in a grave miscarriage of justice, especially considering that: the issue of limitation has already been decided in my favour; I have diligently pursued my rights for over 30 years; and I am an elderly litigant for whom delay means denial of justice. 20.That I pray that, if leave is granted, this Honourable Court orders the expedited hearing of the suit given my age and the fact that this matter has been pending in court since without a determination on the merits.” Responses The 1st Respondent’s case 8.The 1st Respondent filed a Replying Affidavit of its country legal counsel sworn 10/2/2026 in opposition to the application for leave and setting out the Bank’s defence as follows:“Replying Affidavit(In Opposition to the Applicant's Notice of Motion dated 15 December 2025)I, Evelyn Wanjiru Gachanjah, residing in Nairobi and of P.O Box 30003· 00100 Nairobi within the Republic of Kenya, do hereby solemnly make oath and state as follows: - 1.That I am employed by the 1st Respondent/Intended Defendant (Bank) as a Country Legal Counsel. By virtue of my position, I am conversant with the facts of this matter, and 1am being duly authorised by the Bank to swear this Affidavit on its behalf. 2.That I have read and understood the contents of the Applicant/Intended Plaintiff (Applicant),s Notice of Motion dated 15 December 2025 together with the Supporting Affidavit of Ezekiel Kamau Kimani sworn on the same date. I have also discussed the contents of the Application with the Bank's Advocates on record and having fully understood the tenor and import of the contents, I now wish to respond as follows: -Introduction 3.That the Applicant was a customer of the Bank from before the year 1987. 4.That in the year 1987, the Applicant applied for a loan facility from the Bank for the sum of Kshs. 100,000.00. The said loan was secured by a legal " charge over the title to all that property known as Ngariama/Lower-Ngariama/514 ("the Suit Property"). 5.That the Applicant defaulted in repaying the loan such that as of 17th November 1993, the Applicant had an outstanding sum of Kshs. 165,606.00. 6.That in view of the default, the Bank had issued the Applicant with a Statutory Notice which were not honoured within ninety (90) days indicated in the notice. Subsequently, the Bank instructed an auctioneer to arrange for a statutory sale, and the auctioneer gave the Applicant a Notification of Sale and Redemption Notice. The said notices were not honoured, resulting in the Bank arranging for a public auction of the Suit Property. 7.That following issuance of the said notices, the Applicant approached the District Officer Mwea, one P.K. Thuku (the DO) and indicated to him that he had approached Green Africa Society International to settle the said outstanding loan on his behalf by end of November 1993. The DO therefore requested that the public auction be suspended to allow for the said payments to be made. (I annex hereto and marked 'SBK-1 is a copy of the letter by the District Officer). 8.That the Applicant and/or Green Africa Society International failed to pay the outstanding sum of Kshs.165,606.00.00 as promised. Resultantly, the Suit Property was sold in a public auction on 18 November 1993 and the title transferred to the purchaser. As the sale was based on the loan agreement and the charge instrument signed between the Applicant and the Bank, in the event the event the Applicant was aggrieved by the sale. He ought to have challenged it within six (6) years of the sale, that is by 18 November 1999. The Applicant did not file any suit to challenge the sale by the said date. (I annex hereto a copy of the Memorandum of Sale dated 18 November 1993 marked "SBK-2".) 9.That subsequently, by a letter dated 29th November 1999, the Applicant wrote to the Bank alleging that the sale of the Suit Property was irregular. By a letter dated 20th December 1999, the Bank notified the Applicant that it had exercised due diligence in carrying out the exercise, and as such, it was not liable to the Plaintiff. (The letter dated 20th December 1999 is annexed hereto and marked "SBK-3"). 10.That the Applicant subsequently approached the Bank in the year 2011 indicating that the Bank could not account for Kshs. 50,516.15.00 appearing in his account as of 19th April 1991. Upon scrutiny. the Bank had noted that there was a system error which had resulted in understating of the sum of Kes. 50,516.15. (Annexed hereto and marked "SBK-4' is a copy of the statement). 11.That the Bank thereafter decided to refund the Applicant the said sum of Kshs. 50,516.15 together with interest at 7% per annum from 1991 until 2011, totalling Kshs. 159,390.00. The said sum was paid by way of cheque No. 213155, which the Applicant accepted and cashed. (Annexed hereto and marked "SBK-S"is a copy of the cheque).Lack of Jurisdiction 12.That the Applicant subsequently instructed the firm of G. Kamonde Advocates to claim for compensation for alleged unlawful sale of the Plaintiffs Suit Property, alleging that the Bank had allegedly admitted to irregularly selling the Suit Property, in view of the system error noted. The Bank responded by a letter dated 5th October 2012 and another one on 21st December 2012 in which it clearly indicated that there was no admission of liability alleged by the said Advocates and there was nothing irregular or illegal about the sale. (Annexed hereto and marked "SBK-6"and "SBK-7"respectively are these letters). 13.That the Bank explained to the Applicant that even if there was an error in 1991 regarding the understatement of the sum of Kshs, 50,516.15 in the Plaintiffs savings account. the Applicant never authorised the Bank to apply any of the funds in his savings account into the loan account. In any event, the said amount was not sufficient to satisfy the Applicant's indebtedness to the Bank which stood at Kshs. 165,606.00. Consequently. the sale of the Suit Property was justified. 14.That thereafter the Applicant instituted a suit, Kerugoya ELC Case No. 24 of 2015 by way of a plaint dated 27 February 2015 and filed on 6 March 2015. seeking declarations that the statutory notice dated 26 May 1993 was invalid, that the Applicant was the legal owner of the Suit Property, that title documents issued to the 2nd Respondent/Intended Defendant (2nd Respondent) be nullified and general damages for loss of user. The suit was heard by the said Court and by a judgement dated 12 November 2025. The suit was struck out for lack of jurisdiction. (Annexed hereto and marked "SBK-8" is a copy of the judgement). 15.That the Applicant is now seeking leave of this Honourable Court to institute a fresh suit against the Respondents out of time. 16.That considering that the relationship between the Applicant and the Bank was a banker-customer relationship. I am advised by Counsel for the Bank, which advice I verily believe to be sound that it was governed by contract. In the circumstances, the Applicant's claim challenging the way the Bank dealt with the Applicant's account was contractual in nature and they ought to have been filed within six (6) years from the date when the cause of action arose. 17.That I am advised by Counsel for the Bank, which advice I verily believe to be sound that the Applicant's further claim challenging the statutory sale of 18 November 1993 is a contractual claim. The Applicant's intended suit on the grounds of fraud, mistake and/or unlawful sale of charged property are founded on the contract between the Applicant and the Bank. 18.That I am advised by Counsel for the Bank, which advice I verily believe to be sound that this Honourable Court does not have jurisdiction to extend time to file a suit against the Respondent under the provisions invoked by the Applicant as the said provisions do not give jurisdiction to the court to extend time for filing suit in cases involving contract or any other cause of action other than those in tort.The Applicant lacks merit 19.That considering that the cause of action set out in the Applicant's intended suit is fraud. mistake and/or unlawful sale of charged property arising from the Applicant's complaint regarding manner in which his bank account was handled, as well as sale of his property, and considering that the Applicant alleges to have discovered the alleged fraud, mistake and/or unlawful basis for the sale of the charged property on 28 October 2011. The said discovery of fraud or mistake could only extend the time to institute the suit to the date of discovery. Consequently, the Applicant ought to have instituted a proper suit by 28 October 2017. 20.That I am advised by my Advocates on record, whose advice I verily believe to be sound, that having failed to lodge a valid suit by 28 October 2017, the intended suit became statute barred on the said date. 21.That in view of the foregoing, the Applicant has not demonstrated the legal basis for his application for a further extension of time. 22.That in any event, there is now a delay of over nine (9) years from the date when the intended suit became statute barred. The delay is inordinate and inexcusable. 23.That I am further advised by my advocates on record. whose advice I verily believe to be sound. that in any event, the extension of time for otherwise time barred suits in cases of fraud. mistake and ignorance of material facts in section 26 of the Limitation of Acts does not enable an action to be brought to recover-or enforce any-mortgage upon, or set aside any transaction affecting, any property which has been purchased by an innocent purchaser. 24.That the suit property was sold and transferred in accordance with the Jaw and pursuant to the Bank's charge over the property to the 2nd Respondent in 1993. There is no demonstrable knowledge on the part of the 2nd Respondent of the facts the basis of which the Applicant is alleging fraud. mistake or collusion. 25.That the reasons advanced by the Applicant being mistake of counsel, transition of legal counsel and the Applicant's age cannot be used to defeat the clear statutory limitation periods, nor can they provide legal justification for the orders sought. 26.That allowing this application would gravely prejudice the Bank as the events complained of occurred over 30 years ago and the witnesses to those events are not available, rendering the possibility of fair trial impossible. 27.That the application is misconceived and an abuse of the court process. 28.That in the circumstances, more harm would be occasioned than avoided if the orders sought herein are granted. The balance of convenience therefore clearly tilts in favour of not granting the orders sought. 29.That I verily believe that the Applicant's application lacks merit, and I pray the same be dismissed with costs.” The 2nd Respondent’s case 9.The 2nd Respondent filed a Replying Affidavit sworn on 13/1/2026 opposing the application on the principal ground that he is the registered and lawful proprietor of Land Parcel Number Ngariama/Lower Ngariama/514, having acquired the same as a bona fide purchaser for value without notice of any defect through a lawful statutory sale, as follows:“Replying Affidavit (in Respect To The Applicant’s Notice Of Motion Dated 15th December, 2025)I, Cyrus Mucebiu Irungu, of Post Office Box Number 49721-00100, within the Republic of Kenya, an adult male of sound mind and the 2nd Respondent herein, do hereby make oath and state as follows:- 1.That I am the 2nd Respondent herein, the registered and lawful proprietor of Land Parcel Number Ngariama/Lower Ngariama/514 (hereinafter referred to as “the suit property”), having acquired the same through a lawful statutory sale, and therefore competent to swear this affidavit. 2.That I have read and understood the Applicant’s Notice of Motion Application dated 15th December, 2025, and the Supporting Affidavit sworn by Ezekiel Kamau Kimani, and I oppose the same in its entirety as misconceived, incompetent, an abuse of the court process and legally untenable. 3.That the Applicant’s suit in ELC Case No. 24 of 2015, was dismissed on 12th November, 2025, for want of jurisdiction, and the said dismissal brought the litigation to a lawful and conclusive end as against the 2nd Respondent. 4.That the Applicant is now improperly seeking to reopen and resurrect a dispute whose cause of action, if any, arose in 1993, more than three decades ago, in blatant violation of the provisions of the Limitation of Actions Act, Cap 22 Laws of Kenya. 5.That the Applicant has not demonstrated any statutory basis upon which this Honourable Court can grant leave to file a fresh suit for recovery of land and/or damages out of time, particularly against a bona fide purchaser for value without notice. 6.That I lawfully acquired the suit property through a public auction conducted pursuant to valid and lawful statutory notices, following the Applicant’s default under a charge duly registered in favour of the 1st Respondent. 7.That upon purchase, I was duly registered as the proprietor of the suit property and have since enjoyed quiet, peaceful, and uninterrupted possession thereof for over 32 years. 8.That at all material times, I was an innocent purchaser for value, without notice of any alleged fraud, mistake, or irregularity as now belatedly alleged by the Applicant. 9.That the Applicant’s allegations of fraud, illegality, and mistake are denied in toto, are unsupported by cogent evidence, and are in any event statute-barred under Sections 4, 7, and 26 of the Limitation of Actions Act. 10.That granting the orders sought will occasion grave and irreparable prejudice to me, as it would expose my lawfully acquired property to perpetual litigation, uncertainty, and deprivation despite full compliance with the law. 11.That I have, for decades, exercised proprietary rights over the suit property, made developments thereon, and structured my affairs on the legitimate expectation that the dispute had been conclusively settled. 12.That the Applicant’s attempt to institute a fresh suit out of time amounts to an unjust interference with my constitutional right to property under Article 40 of the Constitution of Kenya. 13.That litigation must come to an end, and it would be manifestly unjust to subject the 2nd Respondent to renewed proceedings arising from a transaction concluded over 32 years ago. 14.That the Applicant has been guilty of inordinate, unexplained, and inexcusable delay, which disentitles him to the equitable relief sought. 15.That alleged mistakes of counsel, transition of Advocates, or the Applicant’s age do not override express statutory limitation periods nor do they constitute sufficient cause to defeat accrued proprietary rights. 16.That the Applicant actively participated in litigation for over 32 years and cannot now claim surprise or injustice arising from the lawful consequences of filing a suit in a court without jurisdiction. 17.That the present Application is a clear abuse of the court process, intended to vex, harass, and unlawfully deprive the 2nd Respondent of his property. 18.That the dismissal of the previous suit for want of jurisdiction does not automatically entitle the Applicant to file a fresh suit out of time, nor does it suspend or reset limitation periods. 19.That this Honourable Court lacks jurisdiction to grant leave where the statute expressly bars the claim and where third-party proprietary rights have crystallized. 20.That the Applicant has not met the legal threshold for the grant of leave under the Limitation of Actions Act, and the balance of convenience tilts overwhelmingly in favour of protecting the 2nd Respondent's vested property rights. 21.That it is in the interest of justice, equity, and legal certainty that the Applicant's Notice of Motion Application dated 15th December, 2025, be dismissed with costs to the 2nd Respondent.” Applicant’s supplementary Affidavit 10.The Applicant filed a Further Affidavit sworn on 2/4/2026 responding to the Respondent's assertion that the dismissal of ELC Case No. 24 of 2015 brought the dispute to a conclusive end and urged that it was misleading as the said dismissal was purely on jurisdictional grounds and did not determine the substantive rights of the parties, as follows:“Further Affidavit(In response to the 1st and 2nd Respondent Replying Affidavits dated 10th February, 2026 and 13th January 2026 respectively)I, Ezekiel Kamau Kimani, of Post Office Box Number 20631 - 00200, in the Republic of Kenya, do hereby make oath and state as follows: 1.That I am an adult male of sound mind and the Applicant herein and therefore competent and duly authorized to swear this Further Affidavit. 2.That I have read and been explained to by my advocates on record M/S Kibatia & Company Advocates LLP on the contents of the Replying Affidavits sworn by Cyrus Mucebiu Irungu and Evelyn Wanjiru Gachanja on behalf of the Respondents and I wish to respond thereto as hereunder. 3.That save where expressly admitted, I deny each and every allegation contained in the said Replying Affidavits as if the same were set out herein verbatim and traversed ad seriatim. 4.That the 2nd Respondent's assertion that the dismissal of ELC Case No. 24 of 2015 brought the dispute to a conclusive end is misleading as the said dismissal was purely on jurisdictional grounds and did not determine the substantive rights of the parties. 5.That It is a settled principle of law that a dismissal for want of jurisdiction does not extinguish a cause of action but merely necessitates the filing of the claim before a court of competent jurisdiction. 6.That the present Application seeks leave of this Honorable Court to file a fresh suit out of time which is a remedy expressly provided for under the law where sufficient cause is demonstrated. 7.That the cause of action herein falls squarely within the ambit of Section 26 of the Limitation of Actions Act as the material facts relating to the impugned transaction were not within my knowledge and could not with reasonable diligence have been discovered earlier. 8.That contrary to the 2nd Respondent's averments, the delay In Instituting a fresh suit has been sufficiently explained in my Supporting Affidavit Including the prolonged litigation history, procedural setbacks and factors beyond my control. 9.That the issues raised in the intended suit, particularly those relating to fraud, illegality and irregular exercise of statutory power of sale only came to light progressively and could not reasonably have been pleaded earlier with the specificity now available. 10.That the allegations that the intended claim is statute-barred are premature and misconceived as the question of limitation in cases Involving fraud and mistake is subject to the discovery rule. 11.That the 2nd Respondent's claim of being a bona fide purchaser for value without notice is a contested issue of fact which can only be properly Interrogated at a full hearing and not at this interlocutory stage. 12.That I verily believe that the process leading to the alleged statutory sale was marred by irregularities, want of proper notice and procedural Impropriety which vitiate the validity of the transaction. 13.That the 1st Respondent has failed to adequately rebut the serious allegations raised regarding the exercise of the statutory power of sale. 14.That the Respondents' contention that granting leave would occasion prejudice is unfounded as any such prejudice can be compensated by an award of costs whereas denying me leave would permanently shut me out from accessing justice. 15.That the right to be heard and to have disputes determined on merit is a fundamental principle underpinning the administration of justice and should not be defeated by all procedural technicalities. 16.That the Respondents will suffer no irreparable harm if the orders sought are granted whereas I stand to suffer grave injustice if denied an opportunity to ventilate my claim. 17.That the assertions that this Application is an abuse of the court process are unfounded as the same is made in good faith and in pursuit of substantive justice. 18.That the length of time referenced by the 2nd Respondent must be considered in the context of continuous litigation, procedural hurdles and the complexities surrounding the matter. 19.That I have at all times demonstrated diligence in pursuing my claim and any delay is neither inordinate nor inexcusable. 20.That the Respondents' Replying Affidavits are devoid of merit, legally deficient and incapable of dislodging the clear and sufficient grounds set out in support of the Application.” Submissions Applicant’s submissions 11.The Applicant submits that his cause of action is grounded on fraud, mistake and an unlawful sale of charged property. The issue of limitation in such cases is governed by Section 26 of the Limitation of Actions Act. The 1st Respondent admitted in its letter dated 28th October, 2011 that a "system error” had understated the Applicant's loan account balance by Kshs. 50,516.15 since 19th April, 1991. This error was the catalyst for the statutory notice and the subsequent sale of the suit property. The Applicant could not have discovered this mistake earlier. The 1st Respondent had deliberately withheld bank statements for years as demonstrated by the Applicant's numerous demand letters dating back to 1999. It was only upon the Bank's admission in 2011 that the Applicant had all the material facts of a decisive character to mount a claim based on the mistake and the consequential unlawful sale. 12.It is trite law that in cases of fraud or mistake, the limitation period begins to run from the date of discovery and this is the principle that was applied by the Environment and Land Court in the previous suit, where Justice B.N. Olao in his Ruling of 21st April, 2017 stated as follows;“So if the mistake was discovered in 2011 and this suit was filed in 2015, the Limitation of Actions Act would not be a bar to the plaintiff's claim." 13.The Applicant submits that his suit is not for the simple recovery of land but for a declaration that the sale was unlawful due to fraud and mistake. Section 26 of the Limitation of Actions Act is the applicable provision not Sections 7 and 14 which deal with straightforward recovery of land. 1st Respondent’s submissions 14.The 1st Respondent contends that this Honourable Court lacks the jurisdiction to grant the orders sought in the Application. It is admitted by the Applicant and it is not contested that the relationship between the Applicant and the 1st Respondent was a banker customer relationship, which is a contractual agreement. As the sale of the Suit Property by public auction which occurred on 18 November 1993 was based on the loan agreement and the charge instrument signed between the Applicant and the Bank. Under Section 4(1)(a) of the Limitation of Actions Act, actions founded on contract may not be brought after the end of six years from the date on which the cause of action arose. Considering that the Applicant was aggrieved by the sale, he ought to have challenged it within six (6) years of the sale, that is by 18th November 1999. 15.It was further submitted that the foregoing notwithstanding, even if it was to be argued that the Applicant only discovered the error and alleged fraud, collusion, bad faith in his statement in the year 2011, or that he was not satisfied with the compensation he was paid on 3 October 2011 for the error in the statement, six (6) years from 2011 lapsed on 3 October 2017. Under Section 26 of the Limitation of Actions Act. the period of limitation starts to run when fraud is discovered. As such, the said discovery made the limitation period to start on 3rd October 2011 at the latest. It thus lapsed on 3 October 2017 and cannot be extended. 16.Having failed to file the suit by 18th November 1999 or even 3rd October 2017, does this Honourable Court have jurisdiction to grant the orders sought? Considering that the Applicant intends to base its suit on alleged fraud. collusion, bad faith, Section 26 of the Limitation of Actions Act does not confer any jurisdiction on the Court to extend time beyond 2017. Further, this Honourable Court does not have jurisdiction under Section 27 of the Limitation of Actions Act pursuant to which the Application before this Honourable Court is brought only applies to action founded on tort and only relates to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the Applicant as a result of the tort. 17.The 1st Respondent relied on the case of Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] KECA 186 (KLR), where the Court of Appeal held as follows: “time to file suit can only be extended where the action is found on tort and must relate to the torts or negligence, nuisance or breach of duty and the damages claimed should be in respect of personal injuries to the plaintiff as a result of the tort.” 2nd Respondent’s submissions 18.The Applicant has failed to demonstrate any statutory basis upon which this Honourable Court can grant leave to file a fresh suit. The Applicant relies on two main grounds i.e mistake of Counsel and advanced age of the Applicant; these reasons do not meet the legal threshold required to justify extension of time. Age of the applicant, by itself, is not a is not a disability recognized under the Limitation of Actions Act. In addition, the Applicant has not provided any evidence demonstrating incapacity that would have prevented them from instituting the suit within the statutory period. 19.The Applicant seeks to rely on the alleged mistake of counsel arguing that the matter had been filed in a Court that lacked jurisdiction, which argument is untenable. Jurisdiction is a fundamental issue and ought to be ascertained before filing the suit. Counsel filed a suit in a court that clearly lacked jurisdiction and allowed the matter to remain pending for almost 10 years before judgement was delivered. The applicant cannot now seek the indulgence of this Court to cure the consequences of proceedings that were a nullity from inception. 20.A litigant cannot use the mistake of counsel as a shield for prolonged indolence and inaction. Furthermore, in the present case delays are inexcusable as they were entirely in the control of the Applicant, therefore not entitled to the orders sought. We rely on the case of Njoroge v Kimani (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) where the Court defined excusable delay as follows:“Excusable delays are delays that are unforeseeable and beyond the control of the party. Non-excusable delays are delays that are foreseeable or within the party's control.” 21.The 2nd Respondent lawfully acquired the suit property through a public Auction conducted pursuant to a valid statutory power of sale following the Applicant default under the Charge. The 2nd Respondent was duly registered as the proprietor of L.R NGARIAMA/LOWER NGARIAMA/514 and has enjoyed peaceful uninterrupted possession for over 32 years. The 2nd Respondent therefore is an innocent purchaser of value without notice of any alleged fraud, mistake or irregularity. It was urged that the Court of Appeal in Marteve Guest House Limited v Njenga & 3 others (2022) KECA 539(KLR) emphasized that a purchaser who acquires property through the exercise of a charges statutory power of sale is protected under section 99 of the Land Act. Issue for determination 22.The issue for determination in this application is whether the Applicant has satisfied the legal threshold for the extension of time to file suit pursuant to the provisions of the Limitation of Actions Act, Cap. 22, Laws of Kenya. Analysis Power to extend time file action 23.It is now settled that extension of time is only available in limited circumstances, primarily in actions founded on tort where the claim relates to personal injuries. The Court of Appeal in Divecon Limited v Samani [1995-1998] 1 EA 48 emphatically held:“No one shall have the right or power to bring an action after the end of the limitation period unless the statute expressly provides for extension of time.” 24.Accordingly, this Court is unable to accept the suggestion by the applicant that the provisions on the limitation of Actions are technicalities of procedure which the court need not strictly observe. The limitation periods create absolute defences to actions subject only to the provisions for extension of time set out in the Limitation of Actions Act. The rule of law principle under Article 10 of the Constitution and the principle of substantial justice without regard to technicalities of Article 159 do not take away the statutory requirement as to time limits for filing suits. The time limits of the Limitation of Actions Act are part of the rules of law, which is contemplated in the right to fair hearing under Article 50 (1) of the Constitution that guarantees every person, the plaintiff and the defendant, the right to a fair hearing, that is to say, “the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” Legal regime applicable 25.The time limit for instituting suit based on contract is set out in section 4 (1) of the Limitation of Actions Act as follows:4.Actions of contract and tort and certain other actions(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; 26.Although alluded to the Plaintiff in this case, provisions for extension of time under Section 27 of the Limitation of Actions act which provides for extension of time in cases of disability of the plaintiff applies to cases of tortious claims as follows:“ 27.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....” 27.The reference in section 27 (2) to “(a) either was after the three-year period of limitation prescribed for that cause of action” clear indicates the applicability of the provision only to torts which have a limitation of three years under section 4(2) of the Act, as follows:“(2)An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:Provided that an action for libel or slander may not be brought after the end of twelve months from such date.” 28.In any event the material facts on the system error herein, for purposes of section 27(2) requirement “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”, were within the knowledge of the applicant on 28/10/2011. 29.Section 7 on the stipulation of recovery of land, or possession thereof, in a period of 12 years applies where the land has been wrongly taken away by the defendant. It is the provision usually cited read together with sections 14 and 38 of the Limitations of Actions Act to mount an action for recovery of land from mortgagee in possession or trespassers or by trespassers who seek to be declared as having acquired the land by adverse possession. 30.Section 7 and 14 of the Limitation of Actions Act are in terms as follows:“ 7.Actions to recover landAn 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.”“14. Redemption actionsWhere a mortgagee of land has been in possession, as mortgagee, of any of the mortgaged land for a period of twelve years, no action to redeem the land of which the mortgagee has been so in possession may thereafter be brought by the mortgagor or any person claiming through him.” 31.Consequently, the applicable time limit as regards the claim to recover land from the purchaser of the land upon the exercise of the Banks’s power of sale is 12 years in terms of section 7 of the Limitations of Actions Act. Power to extend time 32.The Limitation of Actions Act provides for extension of time limitations in cases of (a) disability; (b) acknowledgement and part payment; (c) fraud, mistake and ignorance of material facts; and (d) under Part III of the Act as follows:“Part III – Extension Of Periods Of LimitationA – Disability 22.Extension of limitation period in case of disabilityIf, on the date when a right of action accrues for which a period of limitation is prescribed by this Act, the person to whom it accrues is under a disability, the action may be brought at any time before the end of six years from the date when the person ceases to be under a disability or dies, whichever event first occurs, notwithstanding that the prescribed period of limitation has expired:Provided that—(i)this section does not affect any case where the right of action first accrues to a person who is not under a disability and through whom the person under a disability claims;(ii)when a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under disability, no further extension of time is allowed by reason of the disability of the second person;(iii)an action to recover land or to recover money secured on a mortgage of land may not be brought by a person by virtue of this section after the end of thirty years from the date on which the right of action accrued to that person or to some person through whom he claims;(iv)this section does not apply to an action to recover a penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law;(v)in actions for damages for tort—(a)this section does not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of his parent; and(b)this section has effect as if the words "six years" were replaced by the words "three years".B – Acknowledgement and Part Payment 23.Fresh accrual of right of action on acknowledgement or part payment(1)Where—(a)a right of action (including a foreclosure action) to recover land; or(b)a right of a mortgagee of movable property to bring a foreclosure action in respect of the property, has accrued, and—(i)the person in possession of the land or movable property acknowledges the title of the person to whom the right of action has accrued; or(ii)in the case of a foreclosure or other action by a mortgagee, the person in possession of the land or movable property or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest, the right accrues on and not before the date of the acknowledgement or payment.(2)Where a mortgagee is, by virtue of the mortgage, in possession of any mortgaged land and either receives any sum in respect of the principal or interest of the mortgage debt or acknowledges the titles of the mortgagor, or his equity of redemption, an action to redeem the land in his possession may be brought at any time before the end of twelve years from the date of the payment or acknowledgement.(3)Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to movable property of a deceased person, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment:Provided that a payment of a part of the rent or interest due at any time does not extend the period for claiming the remainder then due, but a payment of interest is treated as a payment in respect of the principal debt. 24.Formalities as to acknowledgements and part payments(1)Every acknowledgement of the kind mentioned in section 23 of this Act must be in writing and signed by the person making it.(2)The acknowledgement or payment mentioned in section 23 of this Act is one made to the person, or to an agent of the person, whose title or claim is being acknowledged, or in respect of whose claim the payment is being made, as the case may be, and it may be made by the agent of the person by whom it is required by that section to be made. 25.Effect of acknowledgement or part payment on person other than maker or recipient(1)An acknowledgement of the title to any land or mortgaged movable property, by any person in possession thereof, binds all other persons in possession during the ensuing period of limitation.(2)A payment in respect of a mortgage debt by the mortgagor or any person in possession of the mortgaged property, so far as any right of the mortgagee to foreclose or otherwise recover the property is concerned, binds all other persons in possession of the mortgaged property during the ensuing period of limitation.(3)Where two or more mortgagees are by virtue of the mortgage in possession of the mortgaged land—(a)an acknowledgement of the mortgagor’s title or of his equity of redemption by one of the mortgagees binds only him and his successors, and does not bind any other mortgagee or his successors; and(b)where the mortgagee by whom the acknowledgement is given is entitled to a part of the mortgaged land and not to any ascertained part of the mortgage debt, the mortgagor is entitled to redeem that part of the land upon paying that part of the mortgage debt which bears the same proportion to the whole of the debt as the value of the part of the land bears to the value of the whole of the mortgaged land, together with interest.(4)Where there are two or more mortgagors, and the title or right to redemption of one of the mortgagors is acknowledged as aforesaid, the acknowledgement is taken to have been made to all the mortgagors.(5)An acknowledgement of a debt or other liquidated pecuniary claim binds the acknowledgor and his successors but not any other person.(6)A payment made in respect of a debt or other liquidated pecuniary claim binds all persons liable in respect of the debt:Provided that a payment made after the expiration of the period of limitation prescribed for an action to recover the debt or other claim does not bind any person other than the person making the payment and his successors.(7)An acknowledgement by one of several personal representatives of a claim to movable property of a deceased person, or a payment by one of several personal representatives in respect of any such claim, binds the estate of the deceased person.(8)In this section, "successor", in relation to a mortgagee or a person liable in respect of a debt or claim, means his personal representative and any other person on whom the rights under the mortgage or, as the case may be, the liability in respect of the debt or claim devolve, whether on death or bankruptcy or the disposition of property or the determination of a limited estate or otherwise.C – Fraud, Mistake and Ignorance of Material Facts 26.Extension of limitation period in case of fraud or mistakeWhere, in the case of an action for which a period of limitation is prescribed, either—(a)the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or(b)the right of action is concealed by the fraud of any such person as aforesaid; or(c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—i.in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; orii.in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made. 27.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); 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(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.[L.N. 228/1973, Sch.]” 33.The Court is guided by the principle stated in Divecon Ltd v Samani, supra, that limitation provisions must be strictly applied, but equally that statutory exceptions where properly invoked must be given full effect. 34.It is clear to this court that the provisions of section 27 of the Limitations of Actins Act providing for extension of time affect tort claims only as expressly shown in the marginal note/heading and the body of the stipulation itself as follows:“ 27.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...” 35.Section 26 of the Act provides for extension of limitation period in case of fraud or mistake. The effect of Section 26 of the Limitations Act is to postpone the running of time for purposes of the period of limitation, but only where the Applicant demonstrates fraud, mistake, or concealment of material facts. It is not a blanket provision for extension of time. The conditions for extension are as follows:“ 26.Extension of limitation period in case of fraud or mistakeWhere, in the case of an action for which a period of limitation is prescribed, either—(a)the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or(b)the right of action is concealed by the fraud of any such person as aforesaid; or(c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:” On the facts of this case 36.The Applicant’s case is anchored on the allegation that the suit property was unlawfully sold due to a “system error” admitted by the 1st Respondent. The 1st respondent submits that under Section 26 of the Limitation of Actions Act, the period of limitation starts to run when fraud is discovered, and as such, upon the said discovery of the alleged fraud, the limitation period started on 28th October 2011 and at the latest lapsed twelve years later on 28th October, 2017 and cannot be extended. 37.The cause of action arises from contract of lending by the defendant and borrowing the plaintiff with a mortgage/charge created on the plaintiff’s property in favor of the defendant and the realisation of the security under a power the chargee’s power of sale, and the consequential transfer of the suit property to the buyer, is the subject of the suit. 38.In his own words, the applicant’s submissions on whether the intended suit is time barred under the Limitation of Actions Act characterizes his cause of action as follows:“ 2.On whether the intended suit is time-barred under the Limitation of Actions Act;Your Lordship, the Applicant's cause of action is grounded on fraud, mistake and an unlawful sale of charged property. The issue of limitation In such cases is governed by Section 26 of the Limitation of Actions Act....This provision is the cornerstone of the Applicant's case. The pt Respondent admitted in its letter dated 28th October, 2011 that a "system error" had understated the Applicant's loan account balance by Kshs. 50,516.15 since 19th April, 1991. This error was the catalyst for the statutory notice and the subsequent sale of the suit property.” 39.In the context of this case, alleging fraud, mistake, challenging the exercise of the Chargee’s power of sale with a recovery and seeking to recover the suit land from the purchaser who bought the land upon the exercise of the chargee’s power of sale, wrongly or rightly, it is the provisions of section 4(1), and 7 which apply for limitation timelines for filing suit: six (6) years to sue the bank charge and twelve (12) years to seek to recover the land from the person who bought it under the purported exercise of the Bank’s power of sale. 40.The decision of the ELC on the limitation of the action, which in any event related to a different period of time, does not bind this case which is now considering the different period from the date of the alleged discovery of the error/mistake on 28/10/2011 to the date of present filing of the application herein on 15/12/2025. 41.Prima facie, there does not appear to be cogent evidence placed before this Court to show that the 2nd Respondent participated in any fraud, had knowledge of any alleged irregularities affecting the title; or was privy to any improper dealings between the Applicant and the 1st Respondent. The burden of proving fraud lies squarely on the party alleging it, and such proof must be to a standard higher than a balance of probabilities, though not beyond reasonable doubt. 42.The Court notes the reasonable explanation that the system/arithmetic error occurred in the applicant’s savings accounts and did not affect the loan account, which was in default and the exercise of the power of sale was justified. However, the Court does not make any findings of fact in this regard on account of its finding herein as regards the jurisdiction to extend time in this case. 43.There is also the regulatory context of Sections 77 (3) of Registered Land Act (repealed) and now section 99(4) of the Land Act 2012 which protects the bona fide purchaser for value by prescribing only a remedy in damages for unathorized, improper or irregular exercise of power of sale. 44.Moreover, the protective mechanism inbuilt in the Proviso to section 26 of the Limitation of actions Act for the benefit of the bona fide purchaser for value without notice does shield the 2nd respondent from action, as follows:“Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—i.in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; orii.in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.” 45.This Court would consider then that if there cannot be an action against the 2nd Respondent as a bona fide purchaser for the recovery of the suit land, the only cause of action that remains is the action based on the contract of lending under the charge, whose limitation period is six (6) years under section 4(1)(a) of the Limitation of Actions Act. In such a case, the period of limitation would be six years from the alleged discovery of fraud on 28/10/2011 to lapse on 28/10/2017 and the suit ELC Case No. 24 of 2015 filed on in 2015 would not be barred by the Limitation of Actions Act as held by Olao, J. in the Ruling in of 21/4/2017. 46.Whether the matter is taken to be governed by section 4 (1) of the Limitation of Actions Act providing for six (6) years limitation for actions based on contract, or by section 7 (and 14) of the Act allowing the longer period of twelve (12) years for action for recovery of land the power of extension of limitation period under section 26 of the Act dos not avail the applicant as it is already past 12 years after the date of latest commencement of time pursuant to section 26 on the discovery of the fraud, mistake at the point of the acknowledgment of the system/arithmetic error on 28/10/2011, which twelve year period expired on 28/10/23. There is simply no statutory authority to extend time in the circumstances of this case. 47.This Court does not sit on appeal from the determinations of the Environment and Land Court (ELC) and the decisions of the Court (in Kerugoya ERLC Case No. 24 of 2015) on the Preliminary Objection as to limitation of action (Olao, J.) of 21/4/2017 or on the want of jurisdiction (Mutungi, J.) of 12/11/2025 are not subject to review by this Court. 48.Without deciding the issue, it might appear that the ELC might have considered in view of the risk of opening up the plaintiff to objection on the limitation of action have transferred rather than struck out the suit before it. But this Court does not sit on appeal from that decision and only the Court of Appeal if moved in that behalf appropriately the applicant herein may find that the Court ought to have transferred the suit for hearing and determination by the High Court rather than striking it out. Conclusion 49.The Court would accept that the suit property is land, which has unique monetary and emotional value, and its loss cannot always be adequately compensated by damages. However, where such land is offered as security for a loan, it must be taken that the charger accepts that it is an item for sale to realise its security in the event of default in the payment of the loan. That is the legal basis of a mortgage transaction. 50.Where in a proper case, it can be shown that the chargee’s statutory power of sale has not crystallized, or it is being exercised oppressively, in a fraudulent manner, without following statutory procedure on statutory notices, or it is a result of a mistake as alleged herein, the Court may proper intervene to stop the exercise or otherwise remedy the resultant situation and give relief from the unlawful and wrongful exercise of the power of sale. 51.The applicant has not demonstrated diligent pursuit of the matter in this case. It appears that the applicant in this case improperly went to lengths by correspondence with the Bank Chargee and seeking administrative intervention of the local District Officer and others before the sale of the charged on 18/11/1993 but did not come to court or seek to challenge the sale within the applicable limitation period of six (6) years until its expiry, when by letter of 29/11/1999 he alleged the sale was irregular. 52.The mistake of Counsel in filing the claim in the wrong Court and the age of the applicant dos not avail him against the express statutory provisions of the law of Limitations of Actions Act. 53.Not without sympathy, the Court is unable to offer any relief for the applicant in this case for the following reasons:1.The applicable provision of limitation of actions is section 4(1) which limits the period for filing suit in cases of actions based on contract, as the mortgage/charge contract herein, to six years from the cause of action. The cause of action arising from the illegal exercise of the power of sale under the charge expired on 18/11/1999 six years from the date of the public auction on 18/11/1993.2.If the limitation of actions is extended under section 26 of the Limitation of Actions Act from the date of discovery/acknowledgment of a system error in the applicant savings account on 28/102011, the six year period under section 4(1) (a) of the Limitation of Actions Act ended on 28/10/2017 and the twelve-year period for recovery of land under section 7 of the Act on 28/10/2023.3.Whether the matter is taken to be governed by section 4 (1) of the Limitation of Actions Act providing for six (6) years limitation for actions based on contract, or by section 7 (and 14) of the Act allowing the longer period of twelve (12) years for action for recovery of land the power of extension of limitation period under section 26 of the Act does not avail the applicant as it is already past twelve (12) years after the date of latest commencement of time pursuant to section 26 on the discovery of the fraud, mistake at the point of the acknowledgment of the system/arithmetic error on 28/10/2011, which twelve year period expired on 28/10/23. There is simply no statutory authority to extend time in the circumstances of this case.4.There is no power to extend time beyond the respective periods of limitation under the Limitation of Actions Act, as provided under Order 50 rule 6 of the Civil Procedure Rules. This power, which is statutorily authorized under section 95 of the Civil Procedure Act, does not oust the provisions of the Limitation of Actions Act and it is applicable “Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, [and] the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed….” Section 95 of the Civil Procedure Act is clear to its application to the Act as follows:“ 95.Enlargement of time Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.” 54.If the period of limitation of action is already exceeded by any extension that may be had under section 26 of the Limitation of Actions Act, then there cannot be jurisdiction to extend time any farther. If there is no jurisdiction to extend the limitation of time filing suit, where as in this case, the delay is already outside the extended period in terms of section 26 of the Limitation of Acts Act, there is no discretion in the matter. Orders 55.Accordingly, for the reasons set out above, the Court finds that the application dated 15/12/2025 has no merit and it is dismissed. 56.There shall be orders as to costs.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAppearances:Ms. Lanoi for the Applicant.Ms. Nyaboki for the 1st Respondent.Ms. Kiboi for Mr. Hassan for 2nd Respondent.