Kenneth & another (Both Suing as Legal Representatives and Beneficiaries of the Estate of the Late Joel Kiprotich Kiget) v Kositany (Sued as Guardian Ad Litem of John Kositany) & 2 others (Environment and Land Case E011 of 2026) [2026] KEELC 3300 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that claims about who can sue and whether time has run out must be tested with evidence at trial, not dismissed early on technicalities.
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 Plaintiffs have locus standi to commence the present proceedings
- 2.Whether the suit is statute barred
- 3.Who should bear costs of the Preliminary Objection
Key legal issues
#Whether the Preliminary Objection on locus standi could succeed
It failed; whether the Plaintiffs are legal representatives of the estate of Daniel Kositany Kilel is a question of fact requiring documentary evidence (a grant of letters of administration) and cannot be resolved at the preliminary stage.
The Court accepted that the Plaintiffs plead capacity as representatives of Joel Kiprotich Kiget's estate while seeking relief for the estate of Daniel Kositany Kilel. However, establishing capacity depends on documentary proof, notably a grant of letters of administration, and the suit has not been heard. The Plaintiffs must be given an opportunity to prove their case before capacity can be adjudged. The objection was therefore premature.
Whether the suit is statute barred under Section 7 of the Limitation of Actions Act
The limitation defence cannot be determined as a preliminary objection; it is an issue for trial on evidence.
Although the 1st Defendant argued that the suit, filed in 2019, offended Section 7 of the Limitation of Actions Act given a 1993 registration, the Court relied on authority holding that limitation requires ascertainment of facts through evidence at trial and should be framed as an issue for trial, not disposed of summarily as a preliminary point.
Costs of the Preliminary Objection
Costs awarded to the Plaintiffs, costs following the event under Section 27 of the Civil Procedure Act.
Applying the general rule that costs follow the event under Section 27 of the Civil Procedure Act, and since the Plaintiffs successfully resisted the Preliminary Objection, the 1st Defendant was ordered to pay the costs of the objection.
Legal principles established
#- A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded are correct; it cannot be raised where facts must be ascertained.
- The defence of limitation of time is a matter for determination at the trial on evidence and cannot be resolved as a preliminary objection.
- Costs follow the event and a successful party should ordinarily be awarded costs unless the Court for good reason directs otherwise.
Court orders
#- 1.The 1st Defendant's Preliminary Objection dated 30th October, 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (suit filed by Plaint dated 21st March, 2019)
Relief refused
#Allowance of the 1st Defendant's Preliminary Objection and striking out/dismissal of the Plaintiffs' suit
The locus standi objection required documentary evidence (a grant of letters of administration) and could not be determined as a pure point of law; the limitation objection must be determined at trial on evidence, not as a preliminary objection.
Costs
The Preliminary Objection was dismissed with costs to the Plaintiffs.
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.
Taking the foregoing into consideration, I find that the 1st Defendant's Preliminary Objection lacks merit and I hereby dismiss it with costs.
I find that the objection on Locus standi has come a little too early.
A preliminary objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained.
the defence of limitation of time can only be determined at the trial and cannot be dealt with as a preliminary objection.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth & another (Both Suing as Legal Representatives and Beneficiaries of the Estate of the Late Joel Kiprotich Kiget) v Kositany (Sued as Guardian Ad Litem of John Kositany) & 2 others (Environment and Land Case E011 of 2026) [2026] KEELC 3300 (KLR)", Case Analysis (2026). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3300/eng@2026-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.