(In respect of the 1st Defendant’s Motion dated 25th September, 2025 seeking to strike out the Plaintiff’s suit on the basis of time bar)
Introduction
1. This Ruling is in respect of the 1st Defendant/Applicant’s Notice of Motion dated 25th September, 2025 which is brought under the provisions of Sections 1A, 1B, & 3A of the Civil Procedure Act, Order 2 Rule 15 of the Civil Procedure Rules, & Sections 4 and 7 of the Limitation of Actions Act seeking for the following prayers;
a) The Plaintiff's suit as instituted by the Plaint dated 15th September 2025 be and is hereby struck out in limine for want of jurisdiction.
b) The Plaintiff's suit is time-barred under the provisions of the Limitation of Actions Act, Cap 22 Laws of Kenya, and is therefore incompetent, misconceived, and an abuse of the process of this Honorable Court.
c) Costs of this application and the suit be awarded to the 1st Defendant.
2. The Application is premised on the grounds on the face of it as well as the Supporting Affidavit of the 1st Defendant, Loka Ole Nkeri sworn on 25th September, 2025. The Deponent asserts that he acquired the Plaintiffs’ Osilalei Group Ranch shares for value consideration through a sale agreement dated 27th August, 2004. Following the issuance of the Land Control Board Consent on 6th December, 2006, the group ranch was subdivided and titles issued in 2007. As a result, the 1st Defendant became the registered proprietor of Kajiado/Osilalei/841 upon being issued with its title on 14th May, 2007. Later on, the 1st Defendant subdivided the parcel, KAJIADO/OSILALEI/841 into KAJIADO/OSILALEI/5106 and KAJIADO/OSILALEI/5107 whose titles were issued in his name.
3. According to the 1st Defendant, this court lacks the requisite jurisdiction to entertain the Plaintiff’s claim because it was filed almost 18 years after issuance of the title for KAJIADO/OSILALEI/841 and its subsequent subdivision. The 1st Defendant asserts that the Plaintiff’s claim has been extinguished by operation of law based on Section 7 of the Limitation of Actions Act which limits actions for recovery of land to 12 years. Additionally, the Plaintiff is estopped from alleging fraud or asserting his ownership claim over KAJIADO/OSILALEI/841 as his claim was overtaken by events when the parcel was subdivided and resultant portions acquired new and independent titles.
4. The Plaintiff, Mutende Ole Pasya, through his replying affidavit sworn on 30th September, 2025 maintains that this court has the appropriate jurisdiction to hear and determine his claim insisting that it is not time barred. The Plaintiff contends that he discovered that his name was missing from the register upon his recent visit at the Kajiado Lands Office. He alleges the 1st Defendant with the assistance of the 2nd Defendant unilaterally and fraudulently transferred the property to himself without his consent. Further, as at the time he paid Ksh.35,000/= to the 2nd Defendant, to process his title, he did not know it had already been processed.
Court’s directions
5. The court’s directions were that the application be canvassed by way of written submissions. Only the 1st Defendant however complied. Through his submissions dated 21st January, 2026, the 1st Defendant submits that based on Section 7 of the Limitation of Actions Act, this court lacks the appropriate jurisdiction to adjudicate over the Plaintiff’s claim. Further, the Plaintiff cannot invoke Section 27 of the Act to allege that he “just” discovered fraud based on unsubstantiated contention. The 1st Defendant calls for the striking out of the Plaintiff’s case with costs.
Issues for determination
6. After careful examination of the 1st Defendant’s application, the reply by the Plaintiff as well as the 1st Defendant’s detailed submissions in support of the application, the court finds that the singular issue for determination is whether the Plaintiff’s suit should be struck out in limine for want of jurisdiction on the basis of time bar.
Determination
7. According to the Defendant, the Plaintiff ought to have instituted his claim within 12 years from the year 2007 when the title to the suit property was issued. Premised on this assertion, the 1st Defendant maintains that this court lacks the jurisdiction to adjudicate the Plaintiff’s claim on the basis that it is statute-barred.
8. Section 7 of the Limitation of Actions Act (Cap. 22) upon which the 1st Defendant’s application is premised on stipulates as follows;
“An 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.”
9. The justification for the enactment of the Limitation of Actions Act (Cap. 22) was deliberated upon by the Court of Appeal in Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR), where the court stated as follows
“The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. Special provision is made for infants and for the mentally unsound. But, rightly or wrongly, the Act does not help persons like the applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.”
10. The overriding purpose of Limitation statutes was further deliberated by the Court of Appeal in Kenya Civil Aviation Authority v Kihoro & 2 others [2019] KECA 400 (KLR) which cited the East Africa Court of Appeal dictum in Mehta v Shah [1965] EA 321 by articulating itself as follows;
"The overriding purpose of all limitation statutes is based on the maxim interest reipublicae ut sit finis litium, and it has been the policy of the courts to lean against stale claims. There is no reason why the legislature in this particular instance should enlarge the time within which the personal representative of a deceased plaintiff should have himself brought on the record. Such a construction as canvassed by counsel for the respondent would not only make article 175A nugatory or redundant in the 1877 Act, but would also operate to the prejudice of a defendant who has been lulled into a false sense of security and who would have lost all evidence for his defence...The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, and on the other hand to protect a defendant after he had lost the evidence for his defence from being disturbed after a long lapse of time. The effect of a limitation enactment is to remove remedies irrespective of the merits of the particular case. It is most desirable that legislation which prejudicially affects the rights of citizens should be readily accessible."
11. In his defence, the Plaintiff alleges that he only discovered his name was missing from the suit property records during his recent visit at the Kajiado Land Offices. Further, the plaintiff has denied existence of any sale agreement between himself and the 1st Defendant disposing off the suit property to him.
12. In the case of Dickson Karaba Vs. John Ngata Kariuki & Another, the court stated as follows:-
“…striking out is a very serious matter, it is draconian and it should be resorted to as an avenue when the cause filed is hopeless or it is meant or intended to abuse the process of the court…"
13. Mativo J (as he then was) summarized the judicial policy on striking out suits as follows’
“All the above decisions are in agreement that our judicial system would never permit a party to be “driven from the judgment seat without any court having considered his right to be heard, excepting in cases where the cause of action is obviously and almost incontestably bad. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so week as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”
14. Based on the Plaintiff’s assertions that he only recently discovered that his name was missing from the register of the suit property, his claim cannot be said to be obviously and incontestably time barred.
15. Accordingly, it will be unjust to drive away the Plaintiff from the seat of justice and deny him his right to fair hearing under Article 50(1) of the Constitution. As stated by the Court of Appeal in Peter Ngugi Kabiri v Esther Wangari Githinji & another [2015] KECA 860 (KLR);
“Practical and substantive justice dictate that it is prudent that the dispute between the parties should be resolved and determined through a full hearing on merit.”
16. Premised on the foregoing, I disallow the 1st Defendant’s Notice of Motion dated 25th September, 2025. I however make no orders as to costs.
It is so ordered.
Dated Signed and Delivered at Kajiado Virtually this 5th Day of March 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Sakimpa for the 1st Defendant/Applicant
Mr. Itaya for the Plaintiff/Respondent
N/A by the 2nd Defendant
Court Assistant: Mpoye
M.D. MWANGI
JUDGE
| __________________________________________________________________RULING | KAJIADO ELCLC/E113/2025 | 18 |