Wanjiru (Suing on behalf of the Estate of Noah Karuga Koinange) v Kariuki (Executor of the Estate of Wilfred Koinange Gathiomi) & another (Environment and Land Petition E021 of 2025) [2026] KEELC 3441 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled an old land claim alleging illegality can proceed despite 41 years passing, since limitation law cannot shield unconstitutional acts.
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 dated 1st November 2025 meets the legal threshold of a pure point of law
- 2.Whether the Petitioner's suit is time-barred under the limitation period of 12 years
- 3.Whether the statute of limitations applies to claims founded on allegations of illegality, nullity and violation of constitutional rights
Key legal issues
#Whether the Preliminary Objection met the threshold of a pure point of law
The Preliminary Objection did not meet the legal threshold because determining whether the suit was time-barred would require examination of previous proceedings, i.e. contested facts
The court applied the Mukisa Biscuit test and the IEBC v Cheperenger formulation: a preliminary objection stands on a pure point of law applied to undisputed facts. Since establishing whether the suit was time-barred would require examining when the prior proceedings were filed and concluded, the objection could not be sustained as a preliminary matter.
Whether limitation bars a constitutional petition alleging illegality and violation of constitutional rights
Limitation does not apply to illegalities, nullities or continuing violations of constitutional rights; the Preliminary Objection was without merit
The Petitioner alleged that the Respondents' dealings with the suit properties were unlawful, unprocedurally done and through a corrupt scheme, and that the elders' panel lacked jurisdiction. Relying on Dina Management Limited v County Government of Mombasa, the court held that time does not legitimize an illegality and limitation statutes cannot shield unconstitutional acts, so the objection failed.
Legal principles established
#- A preliminary objection must be founded on a settled and crisp point of law whose application to undisputed facts leads to only one conclusion
- A preliminary objection cannot be sustained where the court must first ascertain contested facts or interrogate evidence
- The statute of limitations does not apply to illegalities, nullities or continuing violations of constitutional rights
Court orders
#- 1.The Preliminary Objection dated 11th November 2025 is dismissed
- 2.Costs of the Preliminary Objection awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(2) of the Constitution of Kenya (Environment and Land Court), suit brought as a constitutional petition alleging violation of Articles 10, 40, 47, 48, 50 and 159
Relief refused
#The Applicant's Notice of Motion dated 27th October 2025 seeking injunction and inhibition was not determined at this stage
The court only determined the Preliminary Objection; the interlocutory application remains pending the hearing of the petition
Costs
The Preliminary Objection is dismissed with costs to the Respondent
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.
Strictly speaking therefore, the Preliminary Objection does not meet the legal threshold.
As correctly submitted by the Petitioner, the statute of limitations doe not apply to illegalities, nullities or continuing violations of constitutional rights.
the passage of time does not legitimize an illegality nor can limitation statutes be used to shield unconstitutional acts.
Consequently, the Preliminary Objection dated 11 th November 2025 is hereby dismissed with costs to the Respondent.
Issues in the judgment
#The Preliminary Objection is described as dated 1st November 2025 in the body of the ruling but the dismissal order refers to a Preliminary Objection dated 11th November 2025
Costs awarded to the Respondent despite the Respondent's Preliminary Objection being dismissed, which appears contrary to the outcome
Typographical errors in the judgment: 'void ab ignition' (apparently 'void ab initio') and 'Articles 10, 40, 47, 48, 50 and 159 of he Constitution of Kenya'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjiru (Suing on behalf of the Estate of Noah Karuga Koinange) v Kariuki (Executor of the Estate of Wilfred Koinange Gathiomi) & another (Environment and Land Petition E021 of 2025) [2026] KEELC 3441 (KLR)", Case Analysis (2026). Thika ELC Petition E021 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3441/eng@2026-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.