Kisang (Suing as the Legal Administrator of the Estate of the Late Isaiah Kibabii Mogin) v County Government of Elgeyo Marakwet & 4 others (Petition E006 of 2024) [2025] KEELC 5480 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a 52-year-old land rights petition because it was filed too late and failed to clearly state which constitutional rights were violated.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection meets the requisite threshold
- 2.Whether the petition raises/discloses any constitutional issues
- 3.Whether the petition is statutorily time barred
Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
Both grounds - failure to plead constitutional provisions with precision and limitation - are pure points of law suitable for a preliminary objection
The court applied the Mukisa Biscuit test that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct. A plea of limitation is expressly an example; whether time had run could be determined from the petition's own averments that the land was acquired in 1972 and registered in 2000, without ascertaining facts outside the pleadings.
Whether the petition met the Anarita Karimi Njeru standard of pleading
It did not; the petitioner merely cited articles without expounding on them or giving particulars of infringement
The court found the petition lacking clarity: articles of the Constitution were cited but not expounded, no sufficient particulars of infringement were given, the acts of the respondents constituting infringement were ambiguous, violations were generalised, and no particulars of illegality were listed against the 4th and 5th respondents. Following Kadenge and Meru Cultural Center, such a petition fails the threshold and may be struck out.
Whether the petition was statutorily time barred
Yes; the cause of action arose in 1972 and 2000 and the petition was filed 52 years later, contrary to Section 7 of the Limitation of Actions Act
Section 7 bars actions to recover land after twelve years from accrual. The petition itself averred compulsory acquisition in 1972 and unlawful registration in 2000, so limitation ran from those dates. The court agreed with respondents that filing after 52 years was out of time; the petitioner's admission of time bar and reliance on continuing violation did not save the petition.
Legal principles established
#- A preliminary objection can be founded on a plea of limitation where the pleadings themselves show the claim is time barred
- A constitutional petition must state with reasonable precision the provisions infringed and the manner of infringement
Court orders
#- 1.Preliminary objection dated 14th March, 2025 upheld as merited
- 2.Petition and notice of motion dated 9th December 2024 struck out
- 3.Costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (constitutional petition jurisdiction)
Relief refused
#Petition allowed to proceed to full hearing
Petition did not disclose with precision the constitutional provisions infringed and was time barred
Costs
Costs of the preliminary objection to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
l find the preliminary objection merited and l strike out the petition and notice of motion dated 9th December 2024 with costs to the respondents
A preliminary objection is in the nature of what used to br a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct.
it was important that he or she set out with a reasonable degree of precision that which he or she complained of, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
I agree with the respondent's submissions that this petition has been brought to court after the lapse of 52 years since the cause of action arose.
Issues in the judgment
#Limitation statutes cited from other jurisdictions appear in respondents' submissions without clear identification
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisang (Suing as the Legal Administrator of the Estate of the Late Isaiah Kibabii Mogin) v County Government of Elgeyo Marakwet & 4 others (Petition E006 of 2024) [2025] KEELC 5480 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5480/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.