https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3354

Onyancha v Bhamra (Sued as the Legal Representative of Charanjit Singh Bhamra - Deceased) & another (Environment and Land Appeal E018 of 2025) [2026] KEELC 3354 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3354 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E018 of 2025 E Asati, J May 28, 2026 Between Leonard Ochengo Onyancha Appellant and Jatinder Singh Bhamra (Sued as the Legal Representative of Charanjit Singh Bhamra - Deceased) 1st Respondent Sammy Brian Onganga 2nd Respondent (Being an Appeal against the Judgment and Decree of Hon. E.N. Mwenda (PM) dated 30th January 2025 in KISUMU CMCC ELC NO 464 OF 2018) Judgment Background 1.The record of appeal filed herein shows that Leonard Ochieng Onyancha, the Appellant herein, was the 1st Defendant in a suit, namely Kisumu CMC ELC NO.464 OF 2018, which had been filed by one Charanjit Singh Bhamra, now deceased, against the Appellant and the 2nd Respondent herein. 2.The Further Amended plaint, which is on pages 18 to 22 of the record of appeal, shows that the suit was first filed in the High Court at Kisumu as Kisumu HCCC NO.197 OF 2010 but later transferred to the Chief Magistrate Court for hearing and disposal. 3.The 2nd Further Amended Plaintiff further shows that the subject matter of the suit was a land parcel known as Kisumu Municipality Block 12/319. That the Plaintiff in the suit (1st Respondent herein) complained that he had bought a portion of the suit land on 3rd April, 1998 but that the Appellant had fraudulently caused registration of the suit land to be done in the name of the 2nd Respondent herein who was a minor and a son of the appellant. That the 2nd Respondent, upon attaining the age of majority, repudiated or voided his father's (the Appellant’s) sale of the portion of the suit land to the Plaintiff (1st Respondent herein), thereby ratifying the actions of the Appellant. 4.The Plaintiff (1st Respondent herein) therefore claimed for specific performance, vacant possession of the suit land, an alternative relief of payment of Kshs.3,270,000/- being the sums held and received by the Appellant and the 2nd Respondent towards sale, sub-division and perfection of titles and any relief that the court would deem fit to grant. 5.In response to the claim, the Appellant filed the 1st Defendant’s defence, denied the 1st Respondent's claim against him and prayed that the same be dismissed. 6.The 2nd Respondent filed the 2nd Defendant’s Statement of Defence dated 14th February, 2013 denying the 1st Respondent's claim. He averred that the claim was statute-barred by the Limitation of Actions Act, Cap 22 Laws of Kenya. He prayed that the 1st Respondent’s claim against him be dismissed. 7.The record shows that the suit was heard before the trial court, which vide the judgement dated 30th January 2025 found in favour of the 1st Respondent herein. The court entered Judgement in favour of the 1st Respondent and against the Appellant for Kshs.3,050,000/-, to attract interest at court rates from 24th December, 2004 until payment in full. 28.The court struck out the suit against the 2nd Respondent with costs to be paid by the Appellant. The appeal 29.Aggrieved by the judgment, the Appellant filed the present appeal vide the Memorandum of Appeal dated 27th February, 2025 on the grounds that:1.The Learned trial Magistrate erred in law and in fact in making a finding that the 1st Respondent's suit was filed within the statutory timelines and therefore not statute-barred.2.The Learned trial Magistrate erred in law and in fact in making a finding that the Plaintiff’s suit was revived within the meaning of Section 23 (1) of the Limitation of Actions Act.3.The Learned Magistrate erred in law and in fact in making a finding that there was an acknowledgment of debt that this gave rise to the revival of the 1st Respondent’s suit, when in actual fact no such acknowledgment existed.4.Having found in favour of the 1st Respondent, the Learned trial Magistrate erred in law and in fact by failing to appreciate when exercising his discretion to award interest that the suit, through no fault of the Appellant lasted in Court for more than 14 Years and that it would be unfair for the Appellant to bear the burden resulting from the long delay which has given rise to the interest that has accrued.5.Having found in favour of the 1st Respondent, the Learned trial Magistrate erred in law and in fact by failing to appreciate, when exercising his discretion to award interest, that if the wheels of justice had turned normally, the attendant delay of 14 years would have been avoided and the accruing interest would have been far less.6.Having found in favour of the 1st Respondent, the Learned trial Magistrate erred in law and in fact when he awarded interest from the 24th of December 2004, when the claim before the Court was a claim for a liquidated sum of money and if any interest was to be awarded, the same could only be awarded from the date of filing suit and not from any earlier date.7.The Learned trial Magistrate erred in law and in fact in failing to appreciate that interest is normally granted at the discretion of the court and in exercising that discretion the court has to act judiciously and ensure fairness to the parties.8.The Learned trial Magistrate erred when he failed to consider the pleadings, reappraise the evidence before the court and decide the suit by applying the law and in the process failed to render a considered Award on Interest in the circumstances.9.The Learned trial Magistrate erred when he failed to consider the various binding authorities on her Court which had been submitted before her by the Appellant by way of written submissions. 30.The Appellant seeks orders that;a.the appeal be allowedb.the judgement of the trial court be set aside and thereafter the 1st Respondent’s suit be dismissed.c.costs of the appeal and of the trial court be awarded to the Appellant. Submissions 31.Pursuant to directions given on 2nd December, 2025, the appeal was heard by way of written submissions. 32.On behalf of the Appellant, written submissions dated 4th February, 2025 were filed by the firm of Odongo Awino & Company Advocates and on behalf of the Respondents, written submissions dated 11th March 2026 were filed by Owiti, Otieno and Ragot Advocates. 33.The court has read and considered the submissions and shall refer to them in the determination of the issues herein. Issues for determination 34.The issues that emerge for determination in this appeal, as can be gathered from the grounds and entire record of appeal generally and the submissions filed by Counsel are;a.whether or not the suit before the trial court was statutorily time-barred and whether therefore the trial court erred in finding that the suit was filed within the statutory timelines.b.Whether the trial court erred in awarding interest to the Respondentc.Whether or not the trial court erred in the manner it appreciated the evidence and authorities placed before it.d.Costs. Analysis and determination 35.This being a first appeal, this court is obligated to re-analyse the evidence/material placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It statedAn appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.” 36.The first issue for determination is whether or not the suit before the trial court was statutorily time-barred and whether therefore the trial court erred in finding that the suit was filed within the statutory timelines. 37.The Appellant’s complaint as contained in grounds 1 to 3 of the grounds of appeal in Memorandum of Appeal is that the trial court erred in making a finding that the 1st Respondent’s suit was filed within the statutory timelines and therefore not statute barred, in making a finding that the Plaintiff’s suit was revived within the meaning of section 23(1) of the Limitations of Actions Act and in making a finding that there was an acknowledgement of debt that gave rise to the revival of the 1st Respondent’s suit when in actual fact no such acknowledgement existed. 38.In paragraph 8 of the 2nd Further Amended Plaint dated 25th September, 2024, the Respondent pleaded that on 24th December, 2004, the 1st Defendant (Appellant herein) fraudulently collected from the Respondent a sum of Kshs.50,000 ostensibly towards obtaining separate titles with a view to transfer land, Reference Kisumu/Municipality/Block 12/428 to the Plaintiff.The proceedings show that PW1 testified that the Appellant received the Kshs.50,000/- in 2004. PW1 stated; 39.We were buying part of the land not bought. It had his house. We were buying the undeveloped part. Block 12/319 was subdivided into 12/427 and 12/428. We were to take 12/428.The agreement regarding sub-division was that he was to do the sub-division. We were waiting for the title deed, which we never got. He used to visit our workshop in 2004; he came to our workshop, we gave him 50,000/- to process title...” 40.So the Respondent’s pleadings and evidence were that in the year 2004, they made payments to the Appellant towards the land sale transaction. 41.The Appellant in his statement of defence admitted the existence of the sale transaction. The Appellant did not specifically deny receipt of the Kshs.50,000/- in the year 2004 but stated in paragraph 9 of his Statement of defence which compromised his reply to paragraph 8 of the plaint about the Kshs.50,000/- that the 2nd Defendant (2nd Respondent in the appeal) being a minor at the time of the subject transaction was incapable of giving apparent or any authority to the Appellant to transact in the land. 42.It was submitted on behalf of the Appellant on the issue of limitation that the suit was statutorily time-barred as time began to run from April, 1998. 43.Counsel submitted that the cause of action in contract arose on 3rd of April, 1998, the date of the alleged breach. That Section 4(1)(a) of the Limitation of Actions Act, Cap 22 prescribes a 6 (six) year limitation period, and that the suit filed on 20th December, 2010 was commenced approximately 12 years and 8 months after the cause of action arose. 44.That as the suit was time barred, the burden lay squarely on the 1st Respondent to demonstrate a lawful interruption or acknowledgement of the time limit. 45.Counsel submitted that the document dated 24th December, 2024 did not constitute a valid acknowledgement under Section 23 of the Limitation of Actions Act. 46.That an acknowledgement must amount to an admission of liability for the debt or claim in question, that it must be clear, unambiguous and related to the specific debt sued upon. That it is trite law that for an acknowledgement to be valid, it must admit the present existence of the debt or claim and not a mere admission of a past liability. 47.Counsel submitted further that the Magistrate’s finding that acknowledgement was manifested by subsequent actions is a fundamental legal error. 48.That section 23 of the Limitation of Actions Act only permits a written and signed acknowledgement. That the court cannot infer an acknowledgement from conduct to supplement a document that is silent on the core liability. 49.On behalf of the 1st Respondent, Counsel referred the court to paragraph 22 of his submissions before the trial court and the precedent cited therein. Counsel submitted that the contested documents satisfied the two formal ingredients of a valid acknowledgement. 50.Counsel submitted that the Appellant recognized that there was in existence an agreement and that he did so by receiving money on the promise to do that which the agreement required him to do. That once it is accepted that the Appellant received the payment pursuant to the one and only agreement before the court, the payment was an acknowledgement that the agreement had become alive. 51.Relying on Nicholas Mahihu Muriithi -vs- Barclays Bank Kenya Limited [2018]eKLR, where it was held that the effect of acknowledgement of debt is to give rise to fresh accrual of the rights of action in computation of limitation. 52.Relying on Section 7 of the Transitional and consequential provisions in the Sixth Schedule to the Constitution, Counsel submitted that equity has now been woven into our law as a constitutional principle. That in the dispute before the court, the Appellant set out to fraudulently keep the money that he was paid for no consideration, leaving the estate of the deceased with no remedy. 53.That a judgment contrary to the one issued by the trial would have assisted the Appellant to unjustly enrich himself. That such a judgment would have been out of step with Article 159 as read with Article 10 of the Constitution. 54.Counsel submitted further that the Constitution overrides even the provisions of Cap.22. Counsel relied on the cases of M.E.K -vs- G L M [2018]eKLR and Kepha Maobe & 365 Others -vs- Benson Mwangi & Another [2015]eKLR to submit that equity is now a constitutional directive that the courts must be alive to in its determination.I have considered the pleadings, evidence and submission both here and the court below on the issue of limitation. 55.From the 2nd Further Amended plaint, it is clear that the sale transaction, the subject matter of the dispute herein, took place in the year 1998 on 3rd April. 56.The transaction was not denied. Payment of the purchase price was equally not denied. In paragraph 3 of the Appellant's Statement of Defence, he admitted the contents of paragraphs 4 and 5 of the amended plaint, which paragraphs pleaded in detail the amount of and how the agreed purchase price/consideration was paid. 57.Under the provisions of section 4 of the Limitation of Actions Act, an action based on contract ought to have been filed within 6 years from the date the cause of action accrued. However, section 23 of the Act provides for fresh accrual of right of action on acknowledgement or part payment. 58.Section 23(3) provides;where a right of action has accrued to recover a debt, or other liquidated pecuniary claim or a claim to moveable property, of a deceased person and the person liable or accountable thereof acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of acknowledgement or the last payment.” 59.The payment of the Kshs.50,000/- made on 24th December, 2004 to the Appellant therefore became significant to the 1st Respondent as the action that would give life to the 1st Respondent’s claim which had otherwise become statute-barred by the time the suit was filed. 60.The payment of Kshs.50,000/- to the Respondent on 24th December, 2004 was not denied. The Appellant contends that the act of payment and the document evidencing the said payment did not amount to an acknowledgement as envisaged in Section 23 of the Limitation of Actions Act. That the same did not therefore have the effect intended in sections 23 and 24 of the Limitation of Actions Act of giving new life to or changing the date of accrual of the right of action to the date of the said acknowledgement and not any earlier date.I note that section 23 refers to acknowledgement of the claim or payment in respect of it. 61.Having considered the evidence placed before the trial court and particularly the testimony of the Appellant, I find that the payment of Kshs.50,000/- to the Appellant on 24th December, 2024 amounted to an acknowledgement under Section 23 and 24 of the Limitation of Actions Act. 62.It is acknowledged that the payment was towards the transaction between the parties, namely the land sale contract made on 3rd April, 1998, and was meant to ensure completion thereof by processing the title deed. 63.This means that the right of action accrued to the 1st Respondent from 24th December, 2004. Hence the trial court did not err in its finding that the suit was filed within time.The next issue for determination is whether or not the trial court erred in awarding interest to the Respondent. 64.The substantive claim in the plaint was challenged by the appellant on grounds that the land did not belong to him but to a minor and that the suit was time-barred. 65.The alternative relief sought in the suit was not denied. The award of Kshs.3,050,000 is not challenged in this appeal, save only on the grounds that the claim was time-barred. 66.Section 26 of the Civil Procedure Act allows the court to award interest. Despite not denying receipt of the decretal sum from the 1st Respondent and despite knowing or realizing that the land could not be transferred to the 1st Respondent, the appellant never offered or made any step to refund the principal amount to the 1st Respondent for the entire period of the suit. He seems to have hoped that the claim could simply be defeated by his plea of limitation so he could remain with the money while the 2nd Respondent retained the land. The circumstances of the case called for award of interest on the principal amount in favour of the 1st Respondent. 67.I find no reason to interfere with the judgment of the trial court. The appeal lacks merit and is hereby dismissed.Costs to the 1st Respondent.Orders accordingly. JUDGMENT DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.E. ASATI,JUDGE.In the presence of:Atika - Court Assistant.Odongo for the Appellant.Otieno David for the Respondent.