Kennedy Ole Pulei a.k.a. Kennedy Rikanka Ole Pulei v Estate of Meja Ole Kiseeki (DCD) & 5 others

1. Before this Court for determination is the Notice of Motion application dated 25th February 2026 and filed on 26th February 2026 by Messrs. Moseti & Associates Advocates on behalf of the Applicant, Kennedy Ole Pulei a.k.a. Kennedy Rikanka Ole Pulei. 2. The application seeks orders allowing the Applicant to initiate substantive legal proceedings against the Respondents outside the statutory timelines prescribed under the Limitation of Actions Act. Specifically, the Applicant seeks the following orders verbatim as set out in the application: 1) THAT leave be granted to the Applicant/Intended Plaintiff to file suit out of time against the Respondents/Intended Defendants. 2) THAT the costs of this application be provided for / be in the cause. 3. The application is anchored on the grounds set out on the face of the motion and supported by the sworn affidavit of Kennedy Ole Pulei a.k.a. Kennedy Rikanka Ole Pulei dated 25th February 2026. 4. The Applicant deposes that the 1st to 5th Respondents entered upon and occupied the suit property with the knowledge, direction, and permission of the 6th Respondent, the committee then charged with overseeing the management of Ewuaso-Kedong Group Ranch. __________________________________________________________________ RULING ELCMISC E019/26 2

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5. He avers that since 1995, he has made continuous but unsuccessful attempts to have the 1st to 5th Respondents vacate and move out of the suit property. He contends that his efforts were severely impeded when the 6th Respondent declined to release his title deed, thereby depriving him of the essential documentation required to initiate legal proceedings within the statutory timeframe. 6. The Applicant further states that the occupation of the suit property by the 1st to 5th Respondents has never been peaceful, as he convened several local community meetings seeking their eviction, but the 6th Respondent consistently acted as an obstacle. He adds that he refrained from litigation earlier in the genuine expectation that the dispute would be resolved amicably out of court through community mechanisms. 7. The Applicant states that he has been advised by his advocates that his claim against the Respondents is barred by statutory limitation, necessitating the court's leave. He asserts that he possesses a meritorious case with high prospects of success, that no prejudice will be suffered by the Respondents if leave is granted, and that he has not instituted any other suit against the Respondents over this subject matter in any other court. __________________________________________________________________ RULING ELCMISC E019/26 3

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8. The application is contested by the 1st, 2nd, 3rd, 4th, and 5th Respondents through a Replying Affidavit sworn on 5th May 2026 by Leposo Ole Salaon (the 5th Respondent), acting on his own behalf and with express authority on behalf of the 2nd, 3rd, and 4th Respondents. 9. The 1st to 5th Respondents depose that their late father, Mencha Ole Kiseeki (who passed away on 22nd April 2024), was a lawful joint registered proprietor of the suit property known as Land Parcel No. Kajiado/Ewuaso Kedong/1318 alongside the Applicant. They state that both the Applicant and their late father were members of the Ewuaso Kedong Group Ranch (Member Nos. 47 and 33, respectively) and were jointly allocated the land under provisional parcel No. 215 pursuant to an allocation letter dated 11th May 1990. 10.The Respondents further state that a joint Title Deed for parcel Kajiado/Ewuaso Kedong/1318 was legally issued to both the Applicant and their late father on 23rd September 1999—over twenty-seven years ago. They contend that the Applicant has always been fully aware of this joint registration and never raised any challenge during their father’s lifetime. 11.To demonstrate the Applicant's prior knowledge of joint ownership, the Respondents cite a boundary dispute regarding the adjacent property __________________________________________________________________ RULING ELCMISC E019/26 4

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(Kajiado/Ewuaso Kedong/1319) dating back to 2010, during which the Kajiado North District Land Registrar summoned both parties in 2015. They highlight that on 11th March 2014, the Applicant and the deceased jointly conducted an official search on parcel 1318 to verify their joint title. 12.The Respondents contend that the Applicant resides on the adjacent parcel (1319), where he has engaged in multiple disputes, and that the present application is a mere afterthought following the dismissal of his previous suit, Ngong MC ELC E014 of 2022, for want of prosecution by Hon. Charles Kutwa, SPM. In that suit, the Applicant was faulted for failing to comply with court orders directing him to join the deceased as a joint owner. 13.Consequently, the 1st to 5th Respondents assert that the Applicant has concealed material facts, has come to court with unclean hands, has failed to offer a plausible explanation for a delay spanning nearly three decades, and is abusing the process of the court in a bid to disinherit the deceased's family. 14.The 6th Respondent, Ewuaso-Kedong Group Ranch, opposes the application through a Replying Affidavit sworn on 5th May 2026 by its Group Chairman, Letina Ole Soya. 15.The 6th Respondent deposes that during the adjudication and demarcation of the Group Ranch land (Kajiado/Ewuaso/Kedong/54) in the late 1980s __________________________________________________________________ RULING ELCMISC E019/26 5

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and early 1990s, the committee established that both the late Menja Ole Kiseeki and the Applicant were already in physical occupation of the subject land in 1988. Owing to land scarcity relative to the number of registered group ranch members, the committee exercised its mandate to allocate the parcel to both individuals jointly, issuing respective allocation letters in 1990. 16.The 6th Respondent refutes the Applicant’s claim that he was in sole occupation or that the deceased moved onto the land secretly in 1995, clarifying that the late Ole Kiseeki was already residing on the land prior to the demarcation exercise. The Chairman deposes that the original Title Deed was issued jointly to both parties in 1999 and was collected by the late Mencha Ole Kiseeki with the full knowledge and consent of the Applicant, as both held equal proprietary rights and both had contributed toward the required survey fees. 17.The 6th Respondent affirms that the Applicant never lodged any grievance or formal complaint with the Group Ranch committee regarding the joint ownership, location, or boundary of the land. It maintains that the deceased’s family has occupied and cultivated the suit land undisturbed for __________________________________________________________________ RULING ELCMISC E019/26 6

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nearly forty years and terms the Applicant's explanations for the delay as fabrications designed to mislead the court Directions 18.The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. Analysis and Determination 19.Having considered the Notice of Motion dated 25th February 2026, the supporting affidavit, the Replying Affidavits filed by the 1st to 5th Respondents and the 6th Respondent, together with the parties’ respective submissions, the Court is of the considered view that the sole issue for determination is whether the Applicant has satisfied the legal threshold for grant of leave to institute proceedings out of time in respect of Land Parcel No. Kajiado/Ewuaso Kedong/1318. 20. The determination of that issue necessarily requires the Court to consider, first, the nature of the intended claim; second, the applicable statutory limitation period; third, whether this Court has jurisdiction to extend that limitation period in the circumstances disclosed; and, finally, whether the explanation advanced by the Applicant is sufficient to warrant the exercise of any discretion available to the Court. __________________________________________________________________ RULING ELCMISC E019/26 7

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21. Although the Applicant has not yet filed the intended substantive suit, the material placed before the Court sufficiently discloses the nature of the dispute. The Applicant seeks leave to institute proceedings against the Respondents concerning his alleged rights over Land Parcel No. Kajiado/Ewuaso Kedong/1318, principally arising from the occupation of the land by the 1st to 5th Respondents and the alleged failure of the 6th Respondent to facilitate the Applicant's acquisition or possession of the property. 22. The substance of the intended proceedings is therefore a dispute concerning ownership, possession and/or recovery of land. It is not an action for damages arising from negligence, nuisance or breach of duty resulting in personal injuries. This distinction is important because the Limitation of Actions Act, Cap. 22, does not confer upon the Court a general and unrestricted power to enlarge every statutory period of limitation. 23. Section 7 of the Limitation of Actions Act provides in express terms: “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.” __________________________________________________________________ RULING ELCMISC E019/26 8

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24. The statutory period applicable to an action for recovery of land is therefore twelve years. The provision is couched in mandatory terms. It does not merely regulate procedure; it imposes a substantive limitation upon the right to institute proceedings for recovery of land after the prescribed period. 25. The rationale underlying limitation statutes was explained by the Court of Appeal in Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104 , where Potter JA stated that: “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.” 26. Similarly, in Mehta v Shah [1965] EA 321 , the Court explained the object of limitation legislation as being to prevent a plaintiff from prosecuting stale claims while protecting a defendant who, with the passage of time, may have lost evidence necessary for the defence of the claim. The principle is particularly important in disputes relating to land, where occupation, possession, boundaries, witnesses and documentary records may change materially over extended periods. __________________________________________________________________ RULING ELCMISC E019/26 9

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27. The Applicant's application is premised upon the proposition that because the intended suit is time barred, this Court can grant leave permitting him to institute it out of time. That proposition, however, must be tested against the statutory scheme. 28. Section 27 of the Limitation of Actions Act is headed, “Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.” It provides, in material part: “(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...; 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...” 29. It follows from the wording of Section 27 that the jurisdiction to extend time under that provision is deliberately confined. The provision does not create a general equitable jurisdiction to enlarge every limitation period. In particular, it is concerned with specified tortious claims involving personal injury. __________________________________________________________________ RULING ELCMISC E019/26 10

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30. This position was expressly considered by the Environment and Land Court in Environment & Land Case No. 1043 of 2016 (OS) , where Okongo J (as he then was) held that the Court has no jurisdiction under Section 27 to grant leave to bring an action for recovery of land after expiry of the twelve-year period prescribed under Section 7. The Court stated: “The court has no jurisdiction under section 27 of the Act to grant leave to an applicant wishing to bring an action for the recovery of land after the limitation period provided for under section 7 of the Limitation of Actions Act has expired.” 31.The Court further held that the limitation period applicable to recovery of land cannot generally be extended by resort to the Court's inherent jurisdiction under Section 3A of the Civil Procedure Act, since the Limitation of Actions Act itself expressly provides the circumstances in which limitation periods may be extended. 32. This Court respectfully associates itself with that reasoning. The Court cannot create, through judicial craftsmanship, a jurisdiction which Parliament has not conferred. Where Parliament has prescribed a specific limitation period and has expressly identified the circumstances in which that period may be extended, the Court is bound by that statutory scheme. __________________________________________________________________ RULING ELCMISC E019/26 11

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33. The Applicant's own evidence presents a substantial difficulty. He states that the 1st to 5th Respondents have occupied the suit property since 1995 and that he has been attempting to have them vacate the property since that time. Even on the Applicant's own account, therefore, his alleged right to recover possession arose many years ago. 34. More significantly, the Respondents have placed before the Court evidence that the disputed parcel was jointly allocated to the Applicant and the deceased pursuant to an allocation process undertaken in or about 1990, and that a joint title deed for Kajiado/Ewuaso Kedong/1318 was issued on 23rd September 1999. 35. The 6th Respondent substantially corroborates that account. It states that both the Applicant and the deceased were already in physical occupation of the land by 1988, that the parcel was subsequently allocated to them jointly, and that the joint title was issued in 1999. The 6th Respondent further states that the Applicant never lodged a formal complaint concerning the joint allocation or registration. 36. The Respondents have also drawn the Court's attention to the events surrounding the neighbouring parcel, Kajiado/Ewuaso Kedong/1319, and, in __________________________________________________________________ RULING ELCMISC E019/26 12

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particular, the alleged official search conducted jointly by the Applicant and the deceased on 11th March 2014 in respect of parcel 1318. 37. The Respondents have demonstrated that the Applicant had actual knowledge of the joint registration considerably earlier than at the time of filing the present application. More importantly for purposes of this application, they make it difficult for the Applicant to contend that a material fact of a decisive character remained outside his actual or constructive knowledge until recently. 38. The Applicant attributes his failure to institute proceedings earlier principally to the alleged refusal by the 6th Respondent to release his title deed and to his expectation that the dispute would be resolved through community mechanisms. 39. The Court is not persuaded that those circumstances can, in law, form the basis for enlargement of the statutory limitation period applicable to a claim for recovery of land. A party's hope that a dispute will be resolved amicably, or his failure to obtain documents which he considers necessary for litigation, cannot by themselves confer jurisdiction upon the Court to extend a statutory limitation period where the governing statute does not permit such extension. __________________________________________________________________ RULING ELCMISC E019/26 13

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40. The principle was forcefully stated in Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104, where the Court of Appeal observed that limitation law expects an intending plaintiff to exercise reasonable diligence and take reasonable steps in his own interest. The Court further observed that the statute does not assist a person who, through dilatoriness or ignorance, fails to do what an informed citizen would reasonably have done. 41. The present case is distinguishable from a situation in which a plaintiff discovers a cause of action only after the expiry of the limitation period because of fraud or mistake falling within Section 26 of the Act. 42. Section 26 of the Limitation of Actions Act provides an important statutory exception. It states: “Where, 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 __________________________________________________________________ RULING ELCMISC E019/26 14

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not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it...” 43. Section 26 is therefore materially different from Section 27. It does not confer upon the Court a general discretionary power to extend limitation. Rather, in the circumstances specified by the section, the limitation period does not begin to run until discovery of the fraud or mistake, or until the point at which the plaintiff could, with reasonable diligence, have discovered it. 44. In the present application, however, the Applicant has not pleaded nor demonstrated, even prima facie, that the joint registration of the property was concealed from him through fraud or that the registration resulted from a mistake whose consequences he only recently discovered. 45. On the contrary, the evidence presented by the Respondents points in the opposite direction. The Applicant is said to have been a joint allottee, to have been aware of the allocation, to have jointly undertaken an official search in 2014, and to have participated in earlier proceedings concerning the neighbouring parcel. These matters substantially undermine any suggestion that the joint registration was a concealed fact. __________________________________________________________________ RULING ELCMISC E019/26 15

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46. It is also significant that the Applicant does not allege that the Respondents fraudulently procured registration of the deceased as a co-proprietor without his knowledge. His complaint, as presently disclosed, appears to be that he considers the joint registration and occupation inconsistent with his claim to the property. That is materially different from demonstrating that the facts constituting the alleged fraud or mistake were unknown to him and could not, with reasonable diligence, have been discovered. 47. Even assuming that the Applicant's intended claim could fall within a statutory exception to limitation, the explanation advanced for the delay of nearly three decades would still require close scrutiny. 48. The Applicant states that he repeatedly attempted to secure the Respondents' departure from the land and convened community meetings for that purpose. Far from demonstrating absence of knowledge of the dispute, that assertion demonstrates that the Applicant was aware, for a considerable period, of the Respondents' occupation and of his alleged grievance concerning the property. 49. The Applicant therefore cannot simultaneously rely upon his knowledge of the occupation to explain his attempts at eviction and, at the same time, rely upon lack of knowledge as justification for failing to institute proceedings. __________________________________________________________________ RULING ELCMISC E019/26 16

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50. The Court also takes cognizance of the alleged previous case, namely Ngong MC ELC E014 of 2022, which the Respondents state was dismissed for want of prosecution and in which the Applicant had been directed to join the deceased as a joint owner. While the Court is not determining the merits or legal consequences of that earlier suit in this application, its alleged existence is relevant to the Applicant's knowledge of the ownership dispute. 51. If, as alleged by the Respondents, the Applicant was already litigating a dispute concerning the land in 2022 and was directed to join the deceased as a joint owner, it becomes even more difficult to accept that the present application is occasioned by a recently discovered material fact. 52. The Court must, however, distinguish between two questions: whether the Applicant may ultimately have a sustainable substantive claim concerning the land, and whether the Court has jurisdiction to grant leave to file that claim outside the statutory limitation period. The former is not presently before the Court. The latter is. 53. A potentially arguable case cannot, without more, overcome a statutory bar. The fact that an applicant believes that his intended claim has merit is not a substitute for satisfying the statutory requirements governing limitation. __________________________________________________________________ RULING ELCMISC E019/26 17

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54. There is an additional difficulty arising from the Respondents' evidence concerning the joint registration of the suit property. 55. The Applicant does not appear to contend that the deceased was a stranger who unlawfully entered upon his land in 1995. Rather, the Respondents' evidence is that the deceased was a joint allottee and joint registered proprietor, together with the Applicant, of parcel 1318. 56. If that evidence is correct, the dispute is not simply one of a registered owner seeking recovery of land from an adverse stranger. It is fundamentally a dispute concerning the parties' respective proprietary interests in jointly registered land. 57. The Court therefore does not accept the Applicant's characterization of the deceased and his successors merely as trespassers whose occupation commenced in 1995. The evidence before Court raises a substantial factual contest as to the origin of the parties' respective interests, the allocation of the parcel, the circumstances of registration, and the nature of the occupation. 58. Those matters may ultimately be determined in substantive proceedings if a competent claim is properly before the Court. They do not, however, __________________________________________________________________ RULING ELCMISC E019/26 18

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provide a basis for granting a statutory extension of time where the Court lacks jurisdiction to do so. 59. The Court is conscious that the Applicant has asserted that his intended claim is meritorious and that the Respondents will suffer no prejudice if leave is granted. Those considerations would ordinarily be relevant where a court possesses a discretion to enlarge time. 60. However, discretion cannot be exercised in a vacuum. The first question is whether the Court possesses jurisdiction to extend the particular limitation period. If it does not, considerations such as the apparent merits of the claim, absence of prejudice, or the Applicant's desire to have the matter heard on its merits cannot create such jurisdiction. 61. As the Court stated in Environment & Land Case No. 1043 of 2016 (OS), the Limitation of Actions Act itself sets out the circumstances in which limitation may be extended, and the Court cannot invoke its inherent jurisdiction to circumvent those statutory provisions. 62. This is particularly so because limitation is not merely a technical procedural rule. Once the statutory period applicable to an action for recovery of land has expired, Section 17 of the Limitation of Actions Act provides that: __________________________________________________________________ RULING ELCMISC E019/26 19

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“Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.” 63. The significance of Sections 7 and 17 was explained in Benjamin Kamau Murma & Others v Gladys Njeri, Civil Appeal No. 213 of 1996 , where the Court of Appeal held that: “The combined effect of the relevant provisions of sections 7, 13 and 17 of the Limitation of Actions Act, chapter 22 of the laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of adverse possession of that land.” 64. The Court therefore cannot treat the statutory limitation period as merely an administrative deadline which may be enlarged whenever the Court considers it fair to do so. 65. Section 28 of the Limitation of Actions Act prescribes the procedure for an application for leave under Section 27. Section 28(2) provides that, before commencement of the relevant action, the Court shall grant leave “if, but __________________________________________________________________ RULING ELCMISC E019/26 20

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only if” the evidence adduced would be sufficient to establish the cause of action and fulfil the requirements of Section 27(2). 66. The expression “if, but only if” is significant. It underscores that leave is not a matter of unrestricted judicial indulgence. The statutory conditions must first be met. 67. In Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104 , the Court of Appeal emphasized that an applicant seeking the benefit of the statutory extension must establish that material facts of a decisive character were outside his actual or constructive knowledge and that he had taken the reasonable steps required by law to ascertain those facts and obtain appropriate advice. 68. The present Applicant has not satisfied that threshold. The intended claim is one concerning land; Section 27 does not provide the requisite jurisdiction to extend the twelve-year period under Section 7 for such a claim; and, in any event, the evidence before Court does not demonstrate that a decisive material fact relating to the Applicant's claim remained outside his knowledge until a legally relevant date. 69. The Applicant's reliance upon the withholding of the title deed by the 6th Respondent does not alter that conclusion. A title deed is evidence of __________________________________________________________________ RULING ELCMISC E019/26 21

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registered proprietary interests, but the Applicant's alleged inability to obtain the physical document does not, without more, demonstrate ignorance of the underlying registration, particularly where the Respondents have produced evidence of the Applicant's alleged participation in an official search in 2014. 70. Equally, the Applicant's reliance on community-based attempts at settlement cannot suspend statutory limitation indefinitely. Alternative dispute resolution and community mechanisms may be valuable in resolving land disputes, but unless the law provides otherwise, negotiations or attempts at amicable settlement do not by themselves stop time from running for purposes of limitation. 71. The Court therefore finds that the Applicant has approached the Court under the wrong statutory mechanism. The intended proceedings concern land and, to the extent that they constitute an action for recovery of land, they fall within Section 7 of the Limitation of Actions Act, which prescribes a twelve-year limitation period. 72. Section 27 does not confer upon this Court a general power to extend that twelve-year period. Its operation is confined to the specific category of tortious claims and personal injuries stipulated therein. Section 28, being __________________________________________________________________ RULING ELCMISC E019/26 22

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procedural to Section 27, cannot confer a jurisdiction which Section 27 itself does not provide. 73. The Applicant has also not demonstrated circumstances falling within Section 26 which would postpone the commencement of limitation on account of fraud, concealment or mistake. On the material presently before Court, the Applicant appears to have been aware of the alleged occupation and, according to the Respondents, of the joint registration for many years. 74. The Court is therefore unable to grant the principal order sought, namely leave to file the intended suit out of time. 75. In reaching this conclusion, the Court has deliberately refrained from making final findings on the competing claims to ownership of Kajiado/Ewuaso Kedong/1318, the validity of the 1990 allocation, the circumstances surrounding the 1999 joint title, or the parties' respective rights over the property. Those are matters that would properly arise for determination in substantive proceedings if a competent cause of action is otherwise available in law. 76. The Applicant's Notice of Motion dated 25th February 2026 is consequently without merit and is hereby dismissed. __________________________________________________________________ RULING ELCMISC E019/26 23

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77. On costs, the general principle under Section 27 of the Civil Procedure Act is that costs follow the event unless the Court, for good reason, orders otherwise. In the circumstances of this matter, and having regard to the nature of the dispute and the relationship between the parties, the Court considers it just that costs of the application be borne by the Applicant and awarded to the 1st to 6th Respondents. 78. Accordingly, the final orders of the Court are that the Notice of Motion dated 25th February 2026 is hereby dismissed with costs to the Respondents. It is so ordered. Dated Signed and Delivered Virtually this 24th Day of September 2026. M.D. MWANGI JUDGE In the virtual presence of: Ms. Koech h/b for Mr. Moseti for the Applicant Mr. Serpepi for the Respondents Court Assistant: Alex M.D. MWANGI JUDGE __________________________________________________________________ RULING ELCMISC E019/26 24

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