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ELCDismissedConstitutional Petition (Eldoret ELC)

Koros & 2 others v Attorney General & 3 others (Environment & Land Petition E001 of 2024) [2025] KEELC 72 (KLR)

Environment and Land Court
23 January 2025
2,783 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a land petition filed 22 years late, confirming that constitutional petitions in Kenya must still respect limitation deadlines.

What this practically means

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Executive summary

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The Petitioners, administrators of the estate of Elijah Koros, petitioned against the 4th Respondent, administrator of the estate of Jiwit Ole Sale Sikorio, seeking declarations that proceedings before the Kapseret Land Dispute Tribunal in Land Arbitration Case No. 64 of 2001 and the subsequent adoption of the Tribunal's award in Eldoret Chief Magistrate's Court Award MCCC No. 99 of 2002 violated Articles 40, 43, 47 and 50 of the Constitution, that the proceedings were nullities, and for an injunction and damages relating to Embaraa Farm land. The dispute stemmed from a failed 1970s-1980s purchase of 1000 acres of Embaraa Farm Limited land, a refund of monies, and a Tribunal verdict holding Elijah Koros's estate accountable for the monies contributed by Talatany Farm Company Limited. The 4th Respondent opposed, arguing res judicata, delay, and that the petition was a contractual dispute disguised as a constitutional petition. The court framed five issues and dismissed the petition. First, the 22-year delay was inordinate and unexplained; applying the Supreme Court's decision in Janmohammed, a constitutional petition does not automatically oust the Limitation of Actions Act, and the Petitioners were riding on a mischief. Second, the proceedings were not a nullity even if filed after Elijah Koros's death, since two parties were sued and the Petitioners failed to prove the filing date. Third, the Tribunal dealt only with refund monies, not land ownership, so it did not exceed its jurisdiction. Fourth, the petition failed the Anarita Karimi Njeru threshold. The petition was dismissed with costs to the 4th Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition is statute barred
  2. 2.Whether the Tribunal proceedings and the subsequent adoption of the award were a nullity
  3. 3.Whether the Tribunal acted outside its jurisdiction
  4. 4.Whether the Petition meets the threshold of a Constitutional Petition
  5. 5.Which order should be made on costs

Key legal issues

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01

Limitation and inordinate delay in constitutional petitions

Holding

The Petition, filed 22 years after the 2002 verdict and adoption, was statute barred with no explanation for the delay; the Petitioners were riding on a mischief.

Reasoning

Relying on the Supreme Court's decision in Janmohammed, the court held that constitutional petitions do not automatically escape limitation law. Factors include the nature of the right, the time taken to ventilate the violation, and whether the claimant rides on a mischief. Given the unexplained 22-year delay and the murky refund evidence, the petition was time barred.

p. 5
02

Whether proceedings against a dead party were a nullity

Holding

The Tribunal proceedings and adoption were not a nullity; two parties were sued and the proper remedy would have been striking out the deceased's name.

Reasoning

The Petitioners bore the burden of proving the dispute was filed after Elijah Koros's death on 12th October 2001 and did not. Even assuming late filing, per Viktar Maina Ngunjiri, proceedings against multiple defendants where one was dead are not a nullity. Substitution of the deceased for execution purposes was lawful.

p. 6
03

Jurisdiction of the Land Dispute Tribunal

Holding

The Tribunal did not exceed its jurisdiction because it dealt only with who received the refund money, not ownership of land.

Reasoning

Although Section 3(1) of the Land Disputes Tribunal Act excludes title disputes, the court found the Tribunal's verdict concerned accountability for monies contributed by Talatany Farm Company Limited in the aborted sale, not determination of title to or ownership of registered land, so no nullity arose on jurisdictional grounds.

p. 6
04

Threshold of a constitutional petition

Holding

The Petition did not meet the constitutional petition threshold as required by Anarita Karimi Njeru.

Reasoning

The court observed that the petition was a contractual money dispute disguised as a constitutional petition and failed the Anarita Karimi Njeru standard of precisely pleading the provisions violated and the manner of violation.

p. 6

Legal principles established

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  • A Constitutional Petition does not automatically oust the Limitation of Actions Act where there is inordinate delay.
  • Proceedings instituted against more than one person, one of whom was dead at institution, are not a nullity; the dead person's name is struck out.

Court orders

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  1. 1.The Petition is dismissed with costs to the 4th Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 40(1) & (3), 43(1)(b), 47(1) and 50(1) of the Constitution of Kenya, 2010

Relief refused

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All declarations sought that the Tribunal proceedings and the Magistrate's Court award contravened the Constitution and rules of natural justice

The Petition was statute barred and devoid of merit; the Tribunal proceedings and adoption were not nullities and the Tribunal did not exceed its jurisdiction

p. 6

Nullification and setting aside of the judgment in Eldoret Chief Magistrate's Court Award MCCC No. 99 of 2002

The ruling of 18th June 2021 substituting the deceased was not a nullity; execution can proceed after a party's death

p. 6

Permanent injunction and damages sought against the 4th Respondent

Any claim to land should have been addressed in an ordinary civil suit, not this Petition

p. 6

Costs

Costs of the Petition to the 4th Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

From the above analysis, it is clear that this Petition is not only statute barred but is also devoid of any merit. I proceed to dismiss it with costs to the 4th Respondent.
p. 6Disposition and final orders
The delay is inordinate and the Petition is statute barred.
p. 5Limitation of constitutional petitions
I therefore find that proceedings before the Tribunal and the subsequent adoption were not a nullity.
p. 6Proceedings against a deceased party
this Petition does not meet the threshold of a Constitutional Petition as has been held time and again in the case of Anarita Karimi Njeru -Vs- Republic.
p. 6Constitutional petition threshold

Issues in the judgment

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minor

The judgment refers to the same authority as both 'Vektar Maina Ngunjiri' and 'Viktar Maina Ngunjiri' with inconsistent spelling

minor

Land parcel number given as LR. NO. 2235 in the background but 'Embaraa Farm LR/NO. 2225' in the reliefs sought

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Koros & 2 others v Attorney General & 3 others (Environment & Land Petition E001 of 2024) [2025] KEELC 72 (KLR)", Case Analysis (2025). Constitutional Petition (Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/72/eng@2025-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.